text:
    INJUNCTION AGAINST THREATENED LIBEL.
    Circuit Court of Erie County.
    Charles A. Judson v. Edmund H. Zurhorst.
    Decided, September, 1907.

      Threatened Libel — Jurisdiction in Equity to Enjoin — Necessary Allegations as to Injury — Freedom of Speech — Obscenity of Publication — Insolvency of the Offender — Injury to Reputation — To Property Rights.

    A court of chancery has no jurisdiction to restrain the publication of a lewd, obscene and lascivious pamphlet merely because it is libel, and will injure plaintiff in his reputation and cause the public to believe he is unfit to hold office.
    Hurin/j. (sitting in place of Parker, J.) ; Haynes, J., and Wildman, J., concur.
    Error to Erie Common Pleas Court.
   The sole question before .this court is: ! 1 Has a court of equity power to enjoin a threatened libel, when — as in the case at bar— it -is alleged that the pamphlet, whose printing and .circulation is sought to be enjoined, is false and untrue and is of an obscene, lewd and lascivious character, known to be such by .the defendant, .and tending to corrupt the morals of the community, and that its publication will irreparably injure the complainant in his reputation, official position and property rights, for which injury he has no adequate -remedy a.t law, -there being no way of stopping the circulation of said circulars when once commenced and the defendant being utterly insolvent and a judgment against him uncollectible.”

This question is raised by demurrer to the second amended petition, defendant objecting especially to the jurisdiction of the court -over the subject-matter and -that the petition fails to state a cause of action.

The defense is based on the constitutional protection of freedom of speech and of the press.

Article I, Section 11 of the Ohio Constitution declares that:

“Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the ¡abuse of the right; and no law shall be passed ¡to restrain or ¡abridge the liberty of speech or of the press. In all criminal prosecutions for li'bel, the truth may be given in evidence to the jury, and if it shall appear to the jury that the matter charged ¡as libelous it true and was published with good motives and for justifiable ends, the party shall be acquitted. ’ ’

It is clear that the Constitution here provides for the fullest liberty of speech, but subject ¡always to the proviso that every citizen must be held responsible for his abuse of the right.

The defendant claims that this responsibility extends ¡only to the criminal liability referred to in the latter part of Section 11, and to the ¡civil liability to respond in damages for the abuse ¡of ¡the right of free speech.

Plaintiff, however, claims that this responsibility goes further and includes the liability to be shut ¡off from a future abuse of that right, where it is shown that such future abuse is contemplated, and that neither a criminal action nor a suit in damages will ¡adequately protect .a complainant or compensate him for the threatened wrong. He therefore asks an' injunction restraining defendant from such abuse.

The question ¡appears ¡to be ¡a somewhat novel ¡one in • Ohio, never authoritatively settled by the Supreme Court. In other states, the great preponderance ¡of authority is ¡against the power of the courts to restrain threatened libels, and the same may be said of the restraint ¡of threatened crimes. For both libel and crime are supposed to be so guarded by other forms of procedure that courts of equity will not assume the unnecessary prepogatiye of forestalling ¡and preventing their poigmissjon. Yet the courts and legal authorities are by no means unanimous in repudiating this prerogative. In England, the courts for a long time refused to assume such power, though occasionally a chancellor hinted at his right to do so. Now, by reason of powers specially conferred by statute and, independently of statute, by reason of a broader view of the subject, the English courts do restrain the publication of libelous matter and especially when property rights are involved.

In this country the older English rule was formerly universal, but in recent years the courts have shown a tendency to break away from it, and to assume the power to prevent injuries, at least to property by libelous publications, though usually giving other reasons than that of the mere libel in support of their decrees.

So great an authority as Story in his ‘ ‘ Equity Jurisprudence, ’ ’ Volume 2, Section 948a, said:

“Courts have never assumed, at least since the destruction of the court of Star Chamber, to restrain any publication which purports to be a literary work upon the mere ground that it is of a libelous character and tends to the degradation or injury of the reputation or business of the plaintiff who seeks relief against such publication; for matters of this sort do not properly fall within the jurisdiction of courts of equity to redress, but are cognizable, in a civil or criminal suit, at law.”

And Pomeroy’s “Equity Jurisprudence,” Volume 6, Section 629, says:

“A libel occupies much the same relative position as a crime in considering the remedy of injunction. Equity will not restrain by injunction the threatened publication of a libel, as such, however great the injury to property may appear to be. This is the universal rule in the United States, and was formerly the rule in England. The present rule in England, contra, rests, on statute. ’ ’

But in Section 630, the same author says:

“But while the libel as such will not be restrained, just as a crime will not be prevented by equity, yet when there is other legitimate ground for equity to issue the injunction, the fact that the publication is also a libel will not prevent the injunction being issued, even if there is a constitutional provision forbidding injunction against libels, as an interference with the right of free speech. ’ ’

And in support of this doctrine the author cites Beck v. Railway Teamsters’ Union, 118 Mich., 497 (42 L. R. A., 407), where the court says:

“It is urged that courts of equity will not restrain the publication of a libel, and that this boycotting circular is a libel, the publication of which can not be enjoined. The same claim was made that courts of equity have no jurisdiction to restrain the commission of a crime. But the answer is, and always has been, that parties can not interpose this defense when the acts are accompanied by threats, express or covert, or intimidation and coercion, and the accomplishment of the purpose wall result in irreparable injury to, and the destruction of, property rights. =» * # rppg pUrpose of this (libelous circular) was not alone .to libel complainant’s business, but to use it for the purpose of intimidating and preventing the public from trading Avith the complainants. It called upon them to protect them. ”

And so for other reasons libelous publications have been enjoined, as in Emack v. Kane, 34 Fed., 46, where one manufacturer was enjoined from sending out circulars to customers of another, threatening them with litigation, tending to intimidate them and prevent their dealing with plaintiff.

See, also, A. B. Farquher Co. v. National Harrow Co., 102 Fed., 714 (49 L. R. A., 755), where the bad faith of defendant in sending out damaging circulars regarding plaintiff’s business Avas one element leading to the granting of the injunction. Pomeroy cites Lord Cairns’ statement in the case of Prudential Assurance Co. v. Knott, 10 Ch. App., 142, AA'hich is perhaps the clearest statement of the rule that can be found. It AAras announced in a case decided in 1874 before the change in the statutes of England, and is as follows:

“It is clearly settled that a court of chancery has no jurisdiction to restrain the publication merely because it is a libel. There are publications which a court of chancery will restrain, and those publications as to Avhich there is a foundation for the jurisdiction of the court to restrain them, will not be restrained the less because they happen also to be libelous. ’ ’

This may fairly be said to be the rule followed by the vast majority of the courts of this country.

We are thus led to inquire whether there is anything in the libel complained of in the case at bar which, aside from its libelous character, justifies the interposition of a court of equity. We have seen that courts have found publications containing various forms of intimidation proper subjects for the exercise of injunction power. Threats of the boycott and threats of litigation, circulated by means of pamphlets have been thus enjoined, not because the statements of the pamphlets were false or libelous, and not merely because they tended to injure plaintiff in his business, but because they tended to intimidate others and prevent them, through fear, from dealing with complainants, thus interfering with the rights of the public to freedom of choice in deal■ing with plaintiff and interfering with plaintiff’s right to the benefit of that freedom of choice. And so where officers of a trades union gave notice to workmen by means of placards and advertisements that they were not to hire themselves to plaintiffs, pending suit between the union and the plaintiffs, it was held, upon demurrer, that the acts of the defendants, as alleged by the bill, amounted to crime, and that the court would interfere by injunction to restrain such acts, inasmuch as they also tended to the destruction or deterioration of property. Springhead Spinning Co. v. Riley, L. R., 6 Eq., 551; Consolidated Steel & Wire Co. v. Murray, 80 Fed., 811; In re Debs, 158 U. S., 564.

But in the case at bar no such claim in made. Plaintiff does say in his petition that he is a public office-holder and enjoys a property right in the emoluments of his office, and that the circulation of the pamphlet complained of is an injury to the reputation of plaintiff and to his property rights in said office, by causing people to believe that he is unfit to hold said office.

But here we find no allegation that people are intimidated or in any other way prevented from dealing with him in his said office, or even that his tenure of said office is threatened or likely to be interfered with because of defendant’s acts. The charge thus made is in effect merely another form of the statement that plaintiff’s reputation will be injuriously affected by defendant’s circulation of said pamphlet. In reality, there is no allegation that the property rights of plaintiff will be at all interfered with, but only that people will believe that he is unworthy of enjoying them.

No destruction or deterioration of these property rights is even suggested in the pleadings of plaintiff. He fails to bring his case within any of the rules laid down in any of the cases so far referred to.

The only other ground on which irreparable injury to plaintiff himself is claimed is that of damage to his reputation by reason of the fact that this .obscene, lewd and lascivious pamphlet will injure him in his reputation and cause the public to believe that he is unfit to hold office.

It is argued by counsel for plaintiff, and with great plausibility, that, when| the obscene character of the pamphlet is known, plaintiff ought -not to be compelled to sit still and allow such a thing to be published concerning him and trust to the doubtful résult of an action for damages to reimburse him in money for an injury to his reputation for which no money judgment can ever compensate him, and for which no punishment, which under the criminal law can be inflicted on the defendant, can ever sufficiently atone.

There is much reason and sound sense in this statement of the case. Were we empowered to formulate original principles of law and lay down new rules by which courts of equity should be guided, such an argument would appeal strongly to our consciences and judgment. But we have no such power. We must be guided solely by principles already enunciated and accepted as sound by courts generally throughout this country and in England.

It may be admitted at once that no self-respecting man would willingly suffer his reputation for morality to be sullied for any amount of money damages, even though such amount were assured him. From an ethical stand-point the action for damages is never an adequate -remedy in such eases, yet it is the only way known to the law for compensating a man for an injury done him; and in a legal sense it is and must be considered an adequate remedy where available at all.

II. L. Peeke, for plaintiff in error.

H. G. DeRan, for defendant in error.

The criminal punishment of the offender has another purpose than compensation, but it would not necessarily follow that because, this kind of a remedy is open to defendant for an injury already done, he is therefore without the right to prevent future injuries of like character. The difficulty is to find some authoritative ease where a court of equity has in this country exercised the power of preventing such injuries — that is, to the reputation of an individual.

A somewhat extended search has failed to disclose such a precedent, and, in the absence of both statute and of precedent, this court is not at liberty to assume a power whose exercise would be of such far-reaching consequences.

While it is plaintiff’s misfortune that defendant is not responsible financially and therefore can not be made to respond in damages even shotild a verdict be obtained against him, yet, if the injunction power is not applicable to an injury of this, kind generally, the mere insolvency of the defendant will hardly afford a judicial reason for its arbitrary exercise.

• There remains one contention for the granting of this injunction on the facts alleged in the petition. That is on the alleged indecency of the pamphlet. The law does not favor obscenity or ■ indecency. In a proper case instituted by one legally authorized to represent the public, the public exhibition of lewd pictures, immodest statuary, or immoral plays, would unquestionably be enjoined or otherwise suppressed; and for the same reason an obscene book or pamphlet is prohibited transit through the United States mails. The case presented to us, however, is not of that character and does not authorize the relief sought.

For these reasons the demurrer to the second amended petition should be sustained.


source: Caselaw Access Project

license: Public Domain

text:
    NOTICE OF DEFECT IN STREET.
    [Circuit' Court of Hamilton County.]
    City of Cincinnati v. Adolph Klein.
    Decided, June 22, 1907.

      Streets — Defect in — Constructive Notice of to the Municipality — Error— Evidence as to Appearance of Defective Place.

    In an action for injury resulting from an alleged defect in a street, it is error to overrule a motion by the city for an instructed verdict in its, behalf, where actual notice of the condition of the street is not claimed, and there is no evidence of constructive notice except as based on speculation.

      W. A. Geoghegan, for the city.

      Moses Iiuskin, contra.
    Smith, J.; Swing, P. J., and Giffen, J., concur.
   We think there was error at the, trial of the above case in that the court overruled the motion of plaintiff in error to arrest the case from the .jury, and to instruct a verd^t in its behalf.

There was no evidence of constructive notice to the city of the existence of the defect in the street, actual notice not being claimed. The rule is, “that if the defect is shown to have existed such a length of time that the city authorities, by the exercise of ordinary care, would have known of its existence and could have repaired it, then the city is charged with constructive notice of such defect” (Cincinnati v. Frazer, 18 Cir. Ct., 50; Leipsic v. Gerdeman, 68 O. S., 1). No such evidence was offered. The jury could not speculate as to the length of time the defect in question existed from statements of witnesses as to the appearance of the defective place after the accident, and thus establish constructive notice to the city.

Judgment reversed.


text:
    WRONGFUL DEATH BY CONTACT WITH ELECTRIC WIRES.
    Circuit Court of Fulton County.
    Dan W. Raker, Administrator, v. Toledo & Indiana Railway.
    Decided, May 29, 1907.

      Negligence — In Failing to Provide a Safe Place to Work — Exposed Electric Wires — Construction of Warning and Notice as to Danger — Admissibility of Evidence of Statements Made by the Deceased as to Ms Safety.

    1. Where, in an action for damages for the death of a workman, alleged to have been caused by the negligence of the defendant, an electric railway company, the evidence shows that before the completion of a building, which was to be used as a power house, certain transformers were installed, and connecting wires carrying heavy currents of electricity were strung from them across the room, and that while doing necessary work in the completion of said room the deceased was killed by striking his head against a heavily charged and unguarded wire, a prima facie case of negligence is established against the electric company, and, it not appearing clearly that the deceased was guilty of contributory negligence, an instruction to return a verdict for the defendant is error.
    2. Whether or not a warning to such a workman not to touch the machinery or wires, which had been placed in the room in which he was working, should be regarded as a warning of extreme danger to himself from touching them, or merely a calling of his attention to the wires and machinery as something not to be disturbed, is a question for the jury to determine when the evidence is such as would lead reasonable minds to differ.
    3. -Where a workman is. killed by' striking his head against an electric wire, while doing work required and necessary for the .completion of the building on which he is employed, statements made by him to other workmen as to whether there was danger in working in such a place are admissible for the sole purpose of showing the state of mind of the deceased touching the safety of working there, as bearing upon the question of contributory negligence.
    Parker, J.; Haynes, J., and Wildman, J., concur.
    Error to tbe Common Pleas Court of Pulton ’ County.
   This, in the court of common pleas, was an action to_ recover damages on account of the death of Frank Durst, which the plaintiff alleged was caused by the negligence of the defendant. After the testimony on behalf of the plaintiff was in, the court directed a verdict for the defendant, which was returned, and judgment was entered upon it. The question presented for our consideration and determination is, whether the court erred in so directing the verdict.

The Toledo & Indiana Railway Company operates a railroad upon which the cars are propelled by electricity. At one of its stations, Pettisville, it has a station house, and in one of the rooms thereof it has certain electrical machinery and apparatus —specially, three transformers of electricity and one other machine the name of which I do not at this moment recall. A. L. Guthrie was employed by the railroad company to construct this building, and he with his employes did so. Before it was finished, however, the company installed this machinery in this apartment of the building.

It seems that in connection with this machinery, leading to and from it, were electric wires carrying a very strong current of electricity, said by the witnesses to amount to 13,200 volts, which, it is admitted, is a deadly current to one coming in contact with it. These three machines were set up close together upon the west side of this room. There were a variety of wires in this room, but the particular wires carrying this high voltage came into the building somewhere near the ceiling of the room, then came down the walls to near the top parts of these transformers, and then were carried across to the tops of the transformers. That brought the wires to within four feet or four and one-half feet of the floor. The transformers were situated within from twenty to twenty-four inches of the west wall. On the west side of the room was a door leading to the outside of the building. On the east side was another door leading into the ticket office and waiting room.

A part of the work which remained for Mr. Guthrie to do was to hang this door at the west end or side of the building with certain heavy weights whereby it might be operated, and another part devolving upon him was the putting in of cement floors. It appears that he had been called upon by Mr. Darrow, the general manager of the company, and shortly before January 12, 1906, to finish up his work upon the building; that he had had some conversation with Mr. Darrow about the apparatus and wires in the room where he would be required to work; and, according to the testimony of Mr. Guthrie, he had been assured by Mr. Darrow that there would be no danger in his proceeding with his work at that place.

The deceased, Frank Durst, was one of the employes of Guthrie, and upon January 12, 1906, he was, under the direction of Guthrie, put to work putting down the cement floor in this room where the electric wires and apparatus were situated. It does not appear, directly at least, that Mr. Durst had been informed of the conversation between Guthrie and Darrow respecting the danger or safety of the place, but there is testimony tending to show that Durst had been warned or cautioned by Guthrie and had been warned by the station agent, Mr. Laver, that he should be careful about the machinery and the wires — that he should not get against them. By most of the witnesses who testified upon this subject it is not stated definitely that he was warned that there would be any danger to him in so doing. For aught that appears in most of the testimony, it was simply a warning that might be 'construed to mean that he might do some damage to the wires or machinery by getting against the same. But by one witness it is said that he was warned that the machinery and wires were dangerous.

He worked at the floor to the eastward of these machines during the forenoon of that day. Shortly after the noon hour, Mr. Guthrie came to the place and set about about hanging this door or hanging the weights to the door. One of the weights was inside of this room near the door that opened between this room and the waiting room. It appears that the most direct and convenient way to convey that weight to the door to which it was to be fastened, to the place where it must be hung, was the way pursued, to-wit, by carrying it toward the westward, to the southward of these machines near to the wall, and then between the machines and the west wall to near the northwest corner of the room. In doing this, it was necessary to go under these wires carrying these powerful currents of electricity.

Frank Durst, at the request of Guthrie, took hold of one end of the weight which was lying on the floor, which appears to have been somewhat bulky, perhaps ten or twelve inches wide and twenty to twenty-four inches long, weighing from ninety to one hundred pounds. Mr. Guthrie took hold of the other end, and together they carried it, Mr. Durst proceeding backward, Mr. Guthrie following, Mr. Durst in a stooping position, and Mr. Guthrie also, as he passed under the wires, necessarily in a stooping-position. Thus they both passed safely under those wires. About that time, Mr. Laver, to assist the parties, climbed upon a ladder set up against the west wall, the top of it resting over the top of the door, the bottom upon the floor, and stood in that position, giving some directions. The weight was laid down by these men who had been carrying it, and Mr. Durst appears to have arisen to a standing or upright position, and in doing so brought the back of his head or neck in contact with one of these wires, the one, we judge, which led from the northermost of these transformers over to the wall — the one near the northwest corner of the room. He was not noticed in the act of making this movement, but at the time he reached the upright position and struck the wires he made some exclamation which attracted the attention of those present, and they say that he at once straightened up and apparently became rigid and then fell forward to the floor, and they carried him out in an unconscious condition, and in about ten minutes he died.

The negligence charged against the company is, that it failed to keep the deceased away from this wire by guarding it or barricading it properly, and that it failed to insulate the wire so as to make it safe for one working in and about the building, and that it failed to give him specific warning of the danger of working in that place; in short, that it put him in an unsafe place to work without proper safeguards or proper warnings so that he might take, care of himself.

We think there can be no question but what a prima facie ease of negligence was made out' against the company. As we understand it, it is hardly contended, on behalf of the defendant in error, that that is not true. We believe it was such a case of negligence as the court would be required to submit to the jury. But it is said that the case was withdrawn from the jury because it was apparent from the evidence introduced. on behalf of the plaintiff that the deceased was himself guilty of such contributory negligence as would have defeated his right of recovery had he lived and sued on his own account, and such as would, therefore, defeat the right of recovery of those suing on account of his death.

This conclusion of the court of common pleas appears to have been based upon the evidence touching the warnings given to the deceased, as well as upon the other circumstances. The general rule upon the subject is, as we understand it, that where reasonable minds may differ in their views and conclusions as to whether a party is guilty of negligence — that is, as to whether, upon the facts, applying proper rules of law and properly construing the facts, he is guilty of negligence — the case should be submitted to a jury. It is only where negligence is so apparent, so clear, that reasonable minds could not differ about it, that a court is authorized to withdraw the case from the consideration of the jury. Was this a case that might be properly withdrawn from the consideration of the jury?

As bearing upon the conduct of the deceased, it should be borne in mind that his employer, and he, through his employer, were directed to work there in that place at a certain kind of work in the finishing up of that building and room. The hanging of the door was a part of the work. Doing that, it seems to us, must almost inevitably bring them into dangerous proximity 'to these wires. There was no effort made to shut off the current, and they appear to have been advised that they would be expected to work while the machines were in operation, while the current was flowing. Not only were they expected and directed to do that, but the cementing of the floor, which had not yet been finished, upon the west side of these machines, in that little narrow space or alley between the machines and the west wall of the building, devolved upon them, and it appears that they were expected to do it without the current being cut off, and this work must necessarily have -brought them into close and dangerous proximity to these wires, so that a misstep, any unconscious movement, might result in instant death to the person thus employed. This, to our minds, not only discloses culpable negligence upon the part of the company, but it reflects a light upon the conduct of the deceased; because unless we are otherwise convinced by most potent evidence, we would conclude that the deceased must have supposed that those wires were less dangerous than they in fact turned out to be; otherwise he would not be apt to do that kind of work in that kind of a place.

To merely say to him, if it was said to him, that the machines were dangerous and that the wires were dangerous, would not, in our judgment, be adequate warning of the extreme danger— not simply of some injury which might be of a trifling nature — • but of the extreme danger of instant death resulting from coming into collision with those wires. If, after being warned of the danger of the wires, the deceased had voluntarily approached them and come in contact with them consciously or purposely, the case would be quite different; but it appears that he came in contact with this wire accidentally; that he had backed into this position; -that his position was such that the wire was behind him and slightly above him. For aught that appears, he was at that moment unconscious of the presence of the wire in that place. For aught that appears he had never been apprised, either by having it pointed out to him or otherwise, of the presence of the wire in that particular position or place. And when he came to do the very natural thing of straightening up, after laying down the weight, he accidentally came in contact with the wire and was instantly killed.

We must regard this, then, as an accidental contact with the wire; and the question is presented whether, under all the circumstances,' this accidental contact with the wire upon his part makes it clear that he was guilty of contributory negligence precluding recovery. After a full consideration of the matter and much discussion we have arrived at a different conclusion from that which seems to have influenced the direction of the jury by the learned judge of the court below. We think evidence of contributory negligence is not so clear as to justify withdrawal of the case from the jury, and that the order in that respect was erroneous.

Another question is presented by this record. James Bundy, a fellow workman of the decedent, was produced as a witness on behalf of the plaintiff. Tie’was at this place upon this day. It appears from his testimony, as well as from other testimony in the case, that Mr. Durst was not familiar with electrical apparatus and wires and currents, and was probably not aware of the ordinary dangers incident to such things. Bundy was asked:

“Q. I will ask you to state to the jury, if you know, what, if any, information Mr. Durst had received as to this being a safe place to work? A. ITe told me it was a safe place.”

That answer, “ITe told me it was a safe place,” was allowed to stand. There was no motion to take it from the jury, and no objection made. But we take it that the scope of the argument upon what follows would include it in what counsel for defendant in error conceive to be improper and inadmissible testimony in the ease, and, as the matter is to go back for retrial, unless some higher court entertains a different opinion about it, we will express our views as to this as well as to what follows:

“Q. What did he say to you? [Objected to by Mr. Files on the part of the defendant; question withdrawn.] Q. I will ask you what, if anything, Mr. Durst said to you with reference to Mr. Darrow, the general manager of the road, having said it was a safe place to work? [Objected to by Mr. Files on the part of the defendant; objection sustained; to which ruling of the court Mr. Handy, upon the part of the plaintiff, then and there excepted. Statement of proof: The plaintiff expected to prove by the answer of the witness to this question that Mr. Durst stated to him on the morning of the day he was killed that Mr. Darrow, the general manager of the company, had stated that it was a safe place for the men to finish that work.] ”

Now, one of the important questions here was as to the state of mind of the deceased upon this occasion, the information or lack of information that he possessed as to the dangers incident to his occupation at that time and place. Manifestly it would not be competent to introduce this evidence for the purpose of showing that this was a safe place, nor for the purpose of showing that Mr. Darrow had said that it was a safe place, but was it not admissible for the purpose of showing the state of mind of the deceased, and therefore reflecting light upon the question of whether he was guilty of negligence? For whether he was guilty of negligence or not must depend in a measure upon the knowledge or information that he possessed or that he supposed he possessed touching the safety or danger to him of the place and his employment upon that occasion.

Generally, evidence of this character would be denominated hearsay, and perhaps self-serving declarations, an objectionable kind of hearsay; but the mile as to self-serving declarations does not apply where it is quite apparent from all the circumstances that the declaration is not made for the purpose of being self-serving. As evidence to establish that it was a safe place, or that Mr. Darrow had said it was a safe place, it would clearly be hearsay, and, therefore, inadmissible; but as an expression or declaration indicating the state of mind or belief of the deceased at that time and place, we do not regard it as being opposed to any rule of law of which we have knowledge.

In the case of Norman v. Will, 5 W. L. J., 508, which was an action to recover back money paid upon notes by mistake, this is said in the syllabus (I should say this is an opinion by the Supreme Court of Ohio sitting in Gallia county at the March term, 1846, and April term, 1847, for they had the case before them on two occasions) :

“Money paid under a mistake of fact can be recovered back. Such mistake consists in the present belief of the party paying the money that it has not previously been paid.
“The declaration of the party, made to one 'holding his note, between the times of the two payments, recognizing the note as a subsisting note, are admissible in favor of such party, to show that he believed the note was not paid.”

The note had in fact been paid, but Norman not being fully advised of the fact by reason of the peculiar circumstances which are set forth in the- case, went to an officer of the- bank and talked with him in such a way as to disclose that he supposed that the note was not paid. Pie afterwards paid it. Still later he discovered that his payment of the note was a mistake, for it had been previously paid. Thereupon he undertook to recover back the money paid by mistake, and in support of his contention that he paid it by mistake, he undertook to prove what he himself had said as indicating that he was laboring under a misapprehension — that he was mistaken about the state of the case. The trial court, over the objection of the defendant, admitted the evidence, and this was assigned for error. The Supreme Court held that it was admissible, citing a number of authorities.

Another decision of our Supreme Court is more nearly in point perhaps. It is the case of Railway v. Herrick, 49 Ohio St., 25. It went up from Huron county and Judge Wildman, of this court, was one of the attorneys, and his contention respecting the matter which is important here was sustained by the Supreme .Court. It was a case wherein Herrick undertook to recover from the railroad company for damages resulting to him by being struck by a train which came into a certain station on time, and which he had been informed and supposed was late; and his misinformation upon the subject was one of the things that explained his action in coming in contact with the train. It is said in the syllabus:

“Where, in such case, it became material to establish that the plaintiff Was at the station to take passage on one of its trains, a declaration, made by him as he left his house on his way to the station, that he was going to another station on the same railway, is competent evidence to establish his character as a passenger. ’ ’

Bailey, Mallahcm Comuay and Handy & Wolf, for plaintiff in error.

King c& Tracy and Files c6 Paxson, contra.

That was one of the points in issue of course. It will be seen, I think, from the opinion, that the court goes even further than that and allows evidence of this character to establish not only his character as a passenger, but to establish his state of mind upon that occasion — precisely the thing which we deem it important to establish in the case at bar with respect to the deceased. (Reads from opinion beginning on page 27.)

The Supreme Court points out that it is very material that the court below should be advised of its views upon this evidence, because the case was to go back for a new trial, and in the meantime the plaintiff had died, so that it would be very important that this evidence of what the plaintiff himself had declared should be admitted upon the retrial of the case, which brings the case in some of its aspects very close to the ease at bar.

In looking into this matter we consulted the last edition of Greenleaf on Evidence, under the head of “Hearsay Evidence,” and we became very well satisfied therefrom that upon general principles this evidence should be admitted; and we found many cases there cited so like the case at bar as to be fairly in point. Wo do not find that edition in this city, so we can not now give precise reference thereto.

On account of the error of the court in giving this direction to the jury to return a verdict in favor of the defendant, and on account of the error of the court in excluding this evidence, the judgment of the court below will be reversed.


text:
    TELEPHONE MAINS IN STREET AN ADDITIONAL ; BURDEN.
    Circuit Court of Franklin County.
    William T. Burns v. Columbus Citizens’ Telephone Co. and Daniel E. Sullivan v. Columbus Citizens’ Telephone Co.

    Decided, 1907.

      Telephones — Additional Burden Placed upon Street — By Placing Wires under Ground — Abutter Entitled to Compensation therefor — But not to an Injunction — New and Inconsistent Use of Street — Eminent Domain — Easements—Constitutional Law.

    1. An abutting owner who consents or submits to the use of the street in front of his premises for telephone purposes by means of poles and wires is not, as a matter of law and an invasion of his private rights, entitled to an injunction restraining the company from placing its wires in a conduit in said street.
    2. The putting of a street to a new and inconsistent use is not necessarily a taking of private property within the meaning of the Constitution. The new use must be such a use as palpably and injuriously affects the adjacent property, and to plead or prove merely the invasion of a private right does not stir the conscience of a court of equity.
    3. The use of a street for telephone purposes, being a permanent occupancy of a part of a highway by a private corporation for private gain, and to that extent an exclusion of the public, is an additional servitude for which an abutting owner is entitled to com-' pensation.
    Appeal from the Common Pleas Court of Franklin County.

       For opinion below see Burns v. Telephone Co., 3 N. P. — N. S., 257.

   The petitions and answers in these eases are substantially the same, and the eases are submitted together as involving the same questions in law.

The petitioners aver the corporate existence of the defendants and their ownership of property abutting on North High street in the city of Columbus; that without the consent of the plaintiffs, and without having compensated or offered to compensate them the defendant is about to construct a conduit about five feet in depth and three feet in width in front of their premises; that they have an easement in the soil of the street; that they notified the defendant not to construct the conduit; that said conduit if constructed will interfere with the access to and the enjoyment of their said premises, and will work a material and irreparable injury to the same, and will greatly impair and injure the street, entirely destroying the asphalt covering thereof ; ■ that the damages which would be caused by the threatened construction would be impossible of ascertainment in an action at law. They ask that the construction of the conduit may be enjoined.

The defendant, in the answers, denies that the plaintiffs have an easement in the soil of the street in front of their premises; that the construction of the conduit will interfere with the plaintiffs’ access to and enjoyment of their premises, or will work any material and irreparable injury to the said premises or the street and its covering in front of the same.

' The defendant then avers that High street where said conduit is being constructed, is about one hundred feet wide, and is in a very thickly settled portion of the city, largely devoted to business purposes; that the ditch for the conduit will be twenty-two feet from the curb in front of the plaintiffs’ premises, and that the sidewalk in front of the same is more than fifteen feet wide; that it is constructing said conduit in compliance with the terms of the agreement entered into with the city defining the mode of use of said street for telephone purposes; that it is under bond to restore the street in as good condition as it was before the construction of the conduit, and that the interruption of the use of the street will be but temporary and the injury resulting therefrom only such as is common to the public; that at this time the wires of the defendant in the vicinity of the plaintiffs’ property are strung on poles above the surface of the ground (it was conceded in argument that the poles and wires are in front of said property on the same side of the street), by the surroundings made dangerous to the public, and that the placing of the wires in the underground conduit will be a benefit to the adjoining property owners, as well as to the public.

A general demurrer was interposed to the answer in each -case in the court of common pleas, and sustained by that court. A temporary injunction having been allowed, it was made perpetual, and the injunction is still in force. The cases are submitted in this court for final determination on the demurrer to the answers.

Wilson, J.; Sullivan, J., and Dustin, J., concur.

Two questions are raised upon the pleadings:

First. Is an abutting-property owner entitled to an injunction against a telephone company engaged in putting its wires in a conduit in a street of a city, as for an invasion of his private rights?

Second. Do the averments of the petition which are not denied by the answer, and the averments of the answer which are admitted' by the demurrer, entitle the plaintiff to relief in a court of equity?

Upon the question as to whether the use of a street for telephone purposes is an additional servitude for which an abutting property owner is entitled to compensation, the authorities are not agreed.

The authorities holding that it is -not, are supported by the argument that it is simply a new method of intercommunication, and, therefore, not a preversion of the original use. Price v. Drew, 136 Mass., 75; Coburn v. Telephone Co., 156 Ind., 90; Julia Bldg. Assn. v. Telephone Co., 88 Mo., 258.

The contrary doctrine is sustained for the reason that it is a permanent occupancy of a part of the highway, not a moving or passing use, by a private corporation for private gain, and to that extent an exclusion of the public. Krueger v. Telephone Co., 106 Wis., 96 (81 N. W. Rep., 1041); Smith v. Printing & Tel. Co., 2 C. C., 259; Daily v. State, 51 Ohio St., 348.

This view is supported, we think, by the weight of authority as well as by the better reason.

Barton Griffith, for plaintiff.

F. A. Davis, contra.

In support of the claim that it is an extension, merely of the dedicatory use, it is not sufficient to say it facilitates intercommunication. The steam railroad facilitates travel, yet it is admittedly a new use. The telegraph is simply a new method of communication, yet in Daily v. State, supra, the Supreme Court holds it an additional burden. It is not the purpose, alone, but the character and. construction of the use as well, that determine whether or not it is a perversion. But a new and inconsistent use is not necessarily a taking of property, within the meaning of the Constitution. It must be such a use as palpably and injuriously affects the adjacent property; and in order to invoke the power of injunction the injury shoirld be made to appear.

To plead or prove merely the invasion of a private right does not stir the conscience of the court. Domschke v. Railway, 148 N. Y., 337; Castle v. Telephone Co., 30 Misc., N. Y., 38 (61 N. Y. Supp., 743) ; Irwin v. Telephone Co., 37 La. Ann., 63.

The answer -wholly negatives any material injuries. Moreover, it is averred in the answer that the defendant is using the street in front of the plaintiff’s property for telephone purposes, by means of poles and wires, and that this use, as regards any rights the plaintiff may have, is more objectionable in form than would be the conduit. It is not sought to prevent the present use by mandatory injunction or otherwise, but rather to prevent the defendant from changing it into what is averred and would appear to be a less obstructive form. If the plaintiffs are consenting or submitting to the present use, as against-the right to constraet a conduit, they would seem to have no standing in equity and should be remitted to their remedies, if any, at law.

The demurrers to the answer respectively, will be overruled, and, the case having been submitted on the pleadings for final determination, the injunctions heretofore granted will be dissolved and the petitions dismissed; the defendant to recover its costs.


text:
    PAROL TESTIMONY AS TO CONSIDERATION EXPRESSED IN DEED.
    Circuit Court of Mahoning County.
    Lucius M. Shehy v. Elizabeth Cunningham et al.
    Decided, October Term, 1907.

      Consideration — Where Expressed in a Deed as Yaluahle — May he Shoion by Parol to have been for Love and Affection, When — Distribution — Receipt for Advancement — Section J¡112.

    In an action for the distribution of a decedent’s estate coming by inheritance, parol evidence is admissible to show that a deed which, upon its face expresses a valuable consideration, was in fact a gift for natural love and affection as an advancement. Cowden v. Cowden et al, 7 C. C. — N. S., 277, overruled.
    Cook, J.; Burrows, J., and Laubie, J., concur.
    Error to Mahoning Common Pleas Court.
   The action in the common pleas court was by Lucius M. Shuey to recover from his three sisters the sum of five thousand dollars, it being the one-fourth part of twenty thousand dollars received by them from the sale of real estate inherited by him and his three sisters from their father.

The sisters admitted that Lucius was entitled to the one-fourth part of the real estate, but claimed that there should be deducted from the same the value of a certain parcel of real estate given by the father to Lucius as an advancement.

By the evidence it appears that on April 15th, 1890, some years before his death, the father conveyed to Lucius ninety-nine acres of land by deed of general warranty for the consideration expressed in the deed of forty-seven hundred dollars, and the son went into possession of the property. At the time of the execution of the deed the father took from the son a receipt setting forth that the conveyance was made on account of Lucius’ interest in his father’s estate. The case was tried to the court, a jury being waived, and the court found that the conveyance of the ninety-nine acres of land was an advancement, and gave judgment for the plaintiff for the sum of $726.65, the difference, with interest, between the'$5,000 and the value of the land so conveyed.

Arrel, Wilson & Harrington, for plaintiff in error.

Moore & Graver and S. M. Thompson, contra.

While there is some conflict in the evidence yet we are satisfied that the court was fully justified in finding that the conveyance from the father to the son was an advancement under the evidence, if the same was admissable.

The principal question, however, made below and also before us is, that the parol evidence admitted for the purpose of showing that, while the deed upon its face stated that the consideration was a valuable one, yet in fact it was a gift as an advancement, was improperly admitted.

Waiving the question as to whether or not the receipt should be read in connection with the deed and as part of the same, avc think the court below was right in admitting the parol evidence.

No question of title was involved as to the ninety-nine acres; it Avas simply as to AAdiether or not Lucius should account for' the $4,700. If the manner of descent of the ninety-nine acres had been at issue the consideration could not be changed by parol evidence from a valuable one as shown in the deed to a good one for natural love and affection. Brown v. Whaley et al, 58 O. S., 654; Groves el al v. Groves, 65 O. S., 442.

Indeed, in this case the question of consideration is not involved at all only in so far as it sIioaa^s the value of the ninety-nine acres in the division and distribution of the estate. Section 4172, Revised Statutes.

But it is said that the case of Samuel A. Cowden v. Hugh T. Cowden et al, 7 C. C. — N. S., 277, decided by this coiArt at the October term, 1905, is contrary to the holding hoav made. So it is. That case Avas properly decided under the evidence, but, in so far as the law laid doAvn in that case upon this question, the court Avas wrong. The Irav as stated in the syllabus Avas correct but was misapplied to the facts of the case. We will not be controlled by that decision and the same is overrul'd.

Judgment affirmed.


text:
    ATTACHMENT FOR. NECESSARIES.
    Circuit Court of Cuyahoga County.
    Joseph W. Rancourt v. Arthur W. Hahn.
    Decided, December 9, 1907.

      Grounds for Attachment — Reckless Statements in Affidavits for Purpose of Obtaining Attachment — Seizure of Household Goods Loaded on Car for Transit to Canada — Exemptions in Lieu of Homestead — Residence—Domicile—Attachment ■for Necessaries — Failure to Specify Section under "Which Selection is Made — Jurisdiction of Justice to Discharge Attachment — Sections 6Jt93 and SJrfl.

    1. Where the debt for which suit is brought is for necessaries or for labor, the plaintiff may have an attachment for that cause alone, without reference to the existence of the other grounds for attachment provided in Section 6493.
    2. One who is the head of a family continues to be a resident of the state within the meaning of the attachment laws, and is entitled to exemptions in lieu of homestead, so long as he and his family are still here, and without regard to the fact that he is preparing to remove from the state with his family and is on the eve of so doing.
    3. Where a defendant in an attachment suit states by motion that he has selected and demanded the property attached in lieu of homestead, and neither he nor his wife is the owner of a homestead, the fact he has not specified under what clause or section of the statutes he made his selection will not defeat his claim, but he will be presumed to have made it under a section which entitled him to the exemption, and it will be available to him under Section 5441.
    4. In such a case the motion, if supported, discharges the attached property, whether it is in the form of a discharge of the attachment or not, and the justice has jurisdiction to entertain and dispose of the contention.
    Marvin, J.; Henry, J., and Winch, J., concur.
    Error to the court of common pleas.
   Hahn brought suit against Rancourt before a justice of the peace in Cuyahoga county, Ohio, upon an account, and at the time of the beginning the action filed an affidavit for attachment against the defendant’s property, setting up various grounds for the attachment, among which is the statement that the claim on which judgment is sought is for necessaries contracted for since April 26th, 1898, and that said defendant is a non-resident of said county of Cuyahoga.

All of the other- grounds which under the statute authorize the issuing of an order of attachment by a justice of the peace are stated in the affidavit, except the one ground that the defendant fraudulently and criminally contracted and incurred the obligation for which suit is about to be brought.

There is no claim at all that any one of these statements in the affidavit is true, except the one as to the necessaries, and the one as to non-residents. Attention is called to this, because of the apparent recklessness with which the ^plaintiff below resorted to a proceeding in attachment, and it is a practice which should be severely criticised, that men will allow themselves to make an affidavit for the purpose of obtaining an attachment, which contains statements which are not true, and which the plaintiff has no reason for supposing to be true. One of the averments in the affidavit is: “That the defendant is not the head or support of a family. ’ ’ Another is: “ That the defendant has left the county of his residence to avoid the service of summons; and that said defendant so conceals himself that a summons can not be served upon him.” Another is: “That the defendant has assigned, and removed and disposed of and is about to assign, remove and dispose of his property, or a part thereof, with intent to defraud his creditors.”

There was no reason, so far as appears for the plaintiff who made this affidavit, to believe that the defendant was about to convert any property into money for the purpose of defrauding -his creditors, and the very fact that the suit was brought for necessaries, furnished to the family of the defendant, negatives the idea that the plaintiff supposed that the defendant was not the head or support of a family. It is said in reference to this, that a printed form of affidavit was used, and that the party preparing it neglected to erase such parts of it as the plaintiff did not rely upon. If this be so, it shows, to use the mildest term, recklessness on the. part of. the person making the affidavit, and neglect on the part of the officer before whom it was made, in not distinctly calling the attention of the party making it to the facts he was making oath to.

Perhaps it may as well be said here that equal recklessness is manifested in the affidavit filed by the defendant in support of his motion to discharge the attachment, for he made oath denying each and every and all of the allegations in the affidavit of the plaintiff; whereas he states in his evidence that the suit was brought for necessaries. It is a most unhappy thing that men will thus make oath to so many things in affidavits which, if they, carefully considered them, they would know were not true.

However, the attachment was issued, the property taken under the attachment consisting of household goods. These goods were loaded on a car of the Pennsylvania Railroad Company for transit to Canada. The defendant below moved the court to discharge the attachment on the ground “that he is a married man residing in the state of Ohio, and living with his wife and four children; that neither he nor his wife is the owner of a homesteád; that the property taken by virtue of the attachment issued in these proceedings is his household, goods, consisting of bed and bedding, furniture, chairs, etc., necessary for himself and famity to keep house with; that the same are exempt under the laws of the state of Ohio; that said household goods will not exceed four hundred dollars ($400) in value; that he demands and selects the same as exempt under the laws of the state of Ohio.”

This motion was overruled by the justice. Appeal was taken to the court of common pleas on the overruling of the motion, and upon a hearing had in that court the motion was there overruled, and it is for the purpose of reversing this action of the court of common pleas that the present proceedings are prosecuted here. The bill of exceptions filed in the case, which com tains all of the evidence, shows that the defendant below was at the time of the commencement of the action indebted to the plaintiff below in the sum of $22.98, for groceries furnished as necessaries to his family. That, he had for a long time resided in Cleveland, Cuyahoga county, Ohio; that he was living here with his said wife and children, but was about to remove his family to Canada, where he had a particular job of work to do which might last for two years or more, and upon the completion of which it was his intention tú Return to Cleveland. It shows further, that neither the defendant nor his wife is the owner of any homestead, and the question is thus raised: First, was he at the time the attachment was issued a non-resident of Cuyahoga county, so as to justify the issuing of attachment? And second, was he a resident of the state of Ohio in such sense that he was entitled to exemptions in lieu of a homestead; and if he was so entitled, did he make selection of and demand his goods attached in such wise as to entitle him to have them exempt; and still further, if all the goods seized in the attachment were exempt, was a motion to discharge the attachment the proper means of obtaining the release of the exempted goods ?

We consider first the question raised as to whether, even if the defendant was a resident of Cuyahoga county, the plaintiff was entitled to an attachment; and we have reached the conclusion, after a careful analysis of Section 6489, Revised Statutes of Ohio, that the fact that the debt for which suit was brought was for necessaries, authorizes the issuing of the attachment, without reference to whether any one of the other causes provided for in the statute existed. The language of the statute is somewhat prolix, but we hold that where the suit is brought' to recover for work or labor or for necessaries the plaintiff may have an attachment for such cause alone.

We consider next the question of whether the defendant was entitled to exemptions, and this depends first upon the question of whether he was a resi4ent of Ohio, for it is shown without contradiction that he was the head of a family, a husband, living with his wife and children. We reach the conclusion that he was, at the time of the levying of this attachment, a resident of Ohio, and therefore entitled to exemptions, as provided for residents of this state who are heads of families. We have already called attention to the facts upon which this is based.

Whatever other definition may be given, it is certain that he is a resident of the state, under our attachment laws, who is actually in the state, and has his home here, and not elsewhere. And when one has acquired a residence here he can not lose it and become a non-resident by simply determining to move elsewhere, without actual removal, while he and his family are still here, though he is preparing to remové elsewhere with his family; until such actual removal he has not become a nonresident of the state.

In Jacobs on Domicile, at Section 73, it is said that the word “domicile” is not synonymous with “residence,” and that the word “residence” commonly imports something less than “doniicile.” This author says that no certain and accurate definition of the word “resident” or “residence” as used in the statutes of the several states seems to have been found, but nowhere does he intimate that one’s residence can be changed, after having been once acquired, without actual removal of his person.

In all the ■ cases examined we find none where it has been held that after one has acquired a residence, in a particular state or county, he can cease to be a resident of such state or county, until he has actually left the place of which he had been a resident.

In Wailkamp v. Loher, 53 N. Y. Sup. Ct. Repts., 79, the decision tends to strengthen the positions taken here, and the authorities cited and quoted from the opinion in Thompson v. Ogden, 3 C. C. — N. S., 51, as well as the ease itself, tend to support the same view.

Drake an Attachment, Section 58 and 59, says:

Section 58. “In determining whether a debtor is a resident of a particular state, the question as to his domicile is not necessarily always involved; for he may have a residence which is not in law his domicile. Domicile includes residence, with an intention to remain; while no length of residence, without the .intention of remaining, constitutes domicile. ’ ’

Section 59. “A resident and an inhabitant mean the same thing. A person resident is defined to be one ‘dwelling or having his abode in any place’-K an inhabitant, ‘one that resides in. a place.’ These terms will therefore be used synonymously, as they may occur in the cases cited. ’ ’

The question here so far as residence is concerned is one applicable to the matter of exemption, because we have already held under the affidavit charging that the debt sued upon was for necessaries, the attachment properly issued. When we consider the use of the word “resident” in connection with exemption laws we must keep in mind that exemption laws are always to be liberally construed; this is the universal holding, and, with that in mind, attention is called to Waples Homestead & Exemption Laws, page 774, under the heading “Resident.”

Among other things, this is said:

“But an intention to leave the state; suspension of business, and the taking of machinery (claimed as exempt), to a railroad station for shipment to a place beyond the state, do not make the debtor a non-resident or affect his exemption privileges.” See Wood v. Bresnahan, 63 Mich., 614; Birdsong v. Tuttle, 52 Ark., 91.

It follows that if the defendant below made the proper selection and demand for his exemptions, he was entitled to them. It is true that the goods claimed by him as exempt are not shown to be such as are specifically exempted by the statute, but, under Section 5441, Revised Statutes of Ohio, neither the defendant nor his wife being the owner of a homestead; if he was, as we hold, a resident of Ohio, he was entitled to property of greater value than this property here attached is shown to be, in lieu of a homestead. In his motion he stated that he selected and demanded the property attached, exempted under the laws of the state of Ohio. It is true that he did not specify under what clause or section of the statutes he made his selection, but it is but fair to say that he must be presumed to have made it under such section of the statutes as entitled him to the exemption, and so that the exemption provided for in Section 5441, Revised Statutes, was available to him under the selection which he made. As to whether the .making the claim should have been before the justice of the peace instead of to the officer who held the property, 'we regard that as settled by the case of Kirk v. Stevenson, 59 Ohio State, 556, where the court say, in reference to a similar state of facts:

Hart, Canfield Crolee, for plaintiff in error.

O. IF. Broadwell, for defendant in error.

‘ ‘ Nor was the demand made of the wrong person; the justice had jurisdiction to entertain and dispose of the contention. ’ ’

It is said, however, on the part of the defendant in error, that even if the facts and the law would exempt all the property taken in the attachment, still a motion to discharge the attachment was not the proper means of obtaining the release of the property. This contention, we think, is disposed of by Kirk v. Stevenson, supra, and that the court should upon motion have discharged the property whether it was in form a discharge of the attachment or not.

In Swan’s Treatise, 18th Edition, at page 444, it is clearly implied that the justice, upon a motion to discharge the attachment, should in a proper ease release the property attached, and forms are given for a discharge of all of the property attached and for a discharge as to some part of the property attached. We find, then, that the court below should have discharged from this attachment on this motion all of the property attached, and for error in overruling the motion and refusing so to discharge, the judgment of the court below is reversed and the ease remanded.


text:
    ASSESSMENT OF DAMAGES FOR. NUISANCE JOINTLY CREATED.
    Circuit Court of Franklin County.
    City of Columbus v. Amos T. Rohr, Executor.
    Decided, October 10, 1907.

      Nuisance — And Damages for the Creation Thereof — Where Due to the Wrong-doing of Various Parties — Joint Liability in an Action to Abate — But not in ana Action at Law for Damages — Separation of Damages — Charge of Court — Error—Pollution of Stream — Noxious Vapors.

    The liability of different persons and agencies contributing by inde pendent action to the production of a nuisance, (while joint in a suit in equity to abate the nuisance, is not joint in an action at law for damages; and where a jury is impanneled to assess damages against one only of the independent wrong-doers, they should be instructed to find, with a liberal hand if necessary but as accurately as possible, the amount of damage resulting from the acts of that particular wrong-doer.
    Wilson, J.; Sullivan, J., and Dustin, J., concur.
   This action was prosecuted in the court below against the plaintiff in error to recover damages for creating and maintaining a nuisance. It appeared in the evidence that the county infirmary and the garbage plant contributed to the injury by adding to the pollution of the stream which caused the damages to the plaintiff’s property. The court charged the jury that the city was not liable for the damages, if any, caused by the garbage plant or the county infirmary, but that if they could not separate the injury done by the city from that done by others, a judgment for the entire damage should be rendered against the city.

The plaintiff below recovered a judgment, and it is here claimed that the judgment should be reversed for error in the charge.

It will be noted the immediate cause of the injury was polluted water and noxious vapors, which could not be separated, and distributed between tbe .offending parties' but tbe ground of action was negligently discharging sewage into the stream so as to cause the pollution of the water ,and air in the vicinity of the plaintiff’s premises. The deposit of the sewage was the tort, while the pollution, of air and water was only the consequence. There was no concert between the offending parties. Their acts were separate and independent.

In 21 Am. & Eng. Eney., page 719, the general rule is said to be:

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

The text is supported by numerous citations from which may be noted: Little Schuylkill Nav. Co. v. Richards, Admr., 57 Pa. St., 142; Chapman v. Palmer, 77 N. Y., 51; Sellick v. Hall, 47 Conn., 260; Lull v. The Fox & Wis. Imp. Co., 19 Wis., 112; Slogg v. Dilworth, 38 Minn., 179; Harley v. Menill Brick Co., 85 Ia., 73; Lockwood Co., v. Lawrence, 77 Me., 297; People v. Gold Rim D. & M. Co., 66 Cal., 138.

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

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

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

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

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

In Lull v. The Fox & Wis. Imp. Co., supra, it is said:

“The argument that .there is difficulty in ascertaining the damage by -the erection of each dam, or that it is impossible, is certainly no reason why -one defendant should pay the damages caused by .another with whom he is in no way connected. ’ ’

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

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

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

Presumably the trial court proceeded upon the authority of that ease, which is said by Johnson, J., who wrote the opinion, to present the precise question involved in pione v. Dickinson, 5 Aleen, 29, distinguished in Little Schuylkill Navigation Company v. Richards, Administrator, supra, from a case like the one at bar. The parties were held therein to be jointly liable because they joined in a single act incapable of division or separation, but authorized by all.

Geo. S. Marshall, for plaintiff in error.

Geo. D. Jones, for defendant in error.

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

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


text:
    WIDOW MADE QUASI TRUSTEE FOR CHILDREN.
    Circuit Court of Cuyahoga County.
    Florence Maud Hobson v. S. Louise Lower et al.
    Decided, 1907.

      Wills — Life Estate in Widow — Residue to Children — Improvident Expenditures hy Widow — May he Required to Answer as Quasi Trustee.

    A widow to whom property was devised for life, with power of disposition “for her use and benefit,” the residue at her death to be divided among the testator’s children, is a quasi trustee for said children, ap.d must answer to their charge that she has improvidently and wastefully used sums in excess of the reasonable expense of her support, moved out of the state and is dissipating the estate.
    Winch, J.; Henry, J., and Marvin, J., concur.
    Error to the Court of Coipmon Pleas.

      Uorr & Lewenthal, for plaintiff in error.

      A. B. Thompson, for defendant in error.
   The will under consideration in this case gives all of the testator’s property to his widow in the following language:

“for the term of her natural life, and with full power to hold and dispose of part or all of the same for her use and benefit as she may see fit.
“Upon the death of my said wife, if there should be any residue of said estate, it is my will that such residue shall be divived equally among my four children.”

Following the decision in the case of Johnson v. Johnson, 51 Ohio St., 446, we hold that the widow is a quasi trustee for the remaindermen, to-wit; the testator’s children.

The petition alleging that the trustee has improvidently and wastefully used considerable sums in excess of the fair and reasonable expense of supporting and maintaining herself, has moved out of the state, and that the plaintiff, one of the remaindermen, fears that the estate will all be dissipated by the widow during her life time, we think she is called upon to answer the petition, and therefore overrule her demurrer to it.


text:
    ASSESSMENT FOR COUNTY DITCH PARTLY WITHIN VILLAGE.
    Circuit Court of Wood County.
    Benjamin F. McCaslin v. Village of Perrysburg.

    Decided, April 27, 1907.

      Ditches and Drains — Improvements of, where the Ditch is Partly Within a Village — Individual Tax-payer in Unincorporated Village having no Solicitor — Gan not Sue to Enjoin Misapplication of County Funds — Constitutional Law — Notice to Property Owner —Appeal—Sections ITfS, J/jSS and 4W.

    1. An individual tax-payer of an unincorporated village having no solicitor can not, under Revised Statutes 1778, which provides for suit by a tax-payer on behalf of municipality, bring action in his own name solely on behalf of the municipality and against the county commissioners to restrain them from proceeding under provisions for the improvement of a county ditch lying partly within the limits of a municipality.
    2. Sections 4483 and 4484, providing, procedure for the petitioning by a municipality, through its mayor, for the improvement of a county ditch lying partly within the municipal limits, is not unconstitutional for failure to provide for notice to property owners, or for appeal, or for a jury, inasmuch as these sections are to be taken as part of the entire chapter applying to ditches wherein provisions are made for such matters.
    Wildman, J.; Parker, J., and Haynes, J., concur.
    Appeal from tbe Common Pleas Court of Wood County.

      • Affirming McCaslin v. Perrysburg, 6 N. P.-N. S , 48.

   The case of McCaslin, on behalf of the village of Perrysburg against the village of Perrysburg, Wood county, Ohio, and others is an action on appeal from the court of common pleas, and it involves the power of a citizen and tax-payer in an incorporated village to restrain proceedings by the officials of a county acting under the provisions of Rev. Stat., 4483, 4484, in the improving of a county ditch, a part of which lies within the territory of an incorporated village.

Proceedings had been taken under Rev. Stat., 4483, and the mayor of the village had presented a petition signed by him officially and with bond to the county commissioners for the establishment of the improvement, and the petition recites in detail the action being taken thereunder by the county commissioners. A demurrer is filed by the county commissioners to this petition, upon the ground that the petition does not state facts constituting a cause of action.

The plaintiff seems to act under Rev. Stat., 1778 (1536-668), which section provides that upon the failure of the solicitor of any municipality to take certain action when requested in the way of instituting suit for the protection of the municipality, a tax-payer may act and may institute the suit, provided that no such suit or proceeding shall be entertained by any court until such request shall have been first made in writing, and provided further that no such suit or proceeding shall be entertained by any court until such tax-payer upon motion of the solicitor or corporation counsel shall have given security for the costs of the proceeding.

In this case it is not alleged that any request was made of the solicitor, but instead thereof it is alleged that the village has no solicitor. The petition does not ask to enjoin the municipality or any of its officers from doing any act; the petition is directed solely at the county authorities — the county commissioners and other officers of the county; and it seeks to prevent the carrying out of the proposed plan for the improvement, because, as claimed, a general system of sewage has already been established by the municipal authorities and the attempt made by the county commissioners is useless, will entail great expenses upon the tax-payers and the municipality without any corresponding benefit. The plaintiff sues, however, not in his own behalf as a tax-payer personally, but in behalf of the municipality, and upon the assumed right to do so because of there being no solicitor to take action.

Revised Statutes 4483, 4484 provide the procedure for the petitioning by a municipality thrqugh its mayor for the establishment of such an improvement, and the action of the county commissioners in accordance with such petition. It is insisted by the petitioner here that these two sections last cited are unconstitutional and invalid in that they provide no means for the protection of property owners by notifying them of the proceedings; no time and place for presentation of claims for damages; no provision for appeal or petition in error, and no provision for jury, and for- other reasons stated. The court of common pleas, to whom this same demurrer and petition were presented for consideration, sustained the demurrer and in the consideration thereof rendered an opinion which we have read with interest, and we find that it so clearly states the position at which we had already arrived in considering the oral and written argument and in the examination of the authorities cited, that we do not care to enter into any elaborate discussion of the questions involved. We think that the trial judge in the court below in passing upon the demurrer has stated very ably and correctly the principles which govern the issues presented in this demurrer. The question is a very serious one, at least as to whether the plaintiff has any right at all to sue in behalf of an incorporated village, notwithstanding the fact that there is no solicitor whose duty it would be first so to do. We think that in any event the power of the citizen to act in behalf of the corporation can rise no higher than what would be the power of the solicitor, if there were one; and the petition as presented to us we think is not such a petition as is contemplated by the section to which I have referred authorizing a citizen to act in lieu of the solicitor, or by the other section authorizing the solicitor to sue for the village. We think also, as held by the court of common pleas, that Rev. Sta-t. 4483 and 4484 are not designed to be the complete procedure of the county commissioners, but that they are to be taken as a pare of the entire Chap. 1 of Title 6 applying to county ditches, and for this reason that sufficient powers are given to the county commissioners to protect, under the forms and provisions of other sections of the chapter, the rights of citizens. We think that the statute is not invalid for the reasons urged by counsel for plaintiff or any other reasons that occur to us.

In the case of Pleasant Hill v. Commissioners, 71 Ohio St., 133, the Supreme Court having these sections before it, recognized, by implication at least, their validity, so far as any constitutional questions are concerned; and while this might not be a conclusive determination of the question of constitutionality, still the fact that the matter is so treated hy the Supreme Court is not to be overlooked.

F. E. Bowers, for plaintiff.

J. E. Ladd, for defendant.

It may be remarked before completing our consideration of the case, that some analogy to the procedure adopted here under Rev. Stat. 4483 is to be found in Rev. Stat. 4450, wherein provision is made for an application for a ditch improvement to the county commissioners, to be signed not only by the individual owners of the lots and lands which will be drained or benefited thereby, but also by the street commissioner or supervisor of the road district in which the same is to be constructed, or the trustees of any original surveyed township owning land granted by Congress for the support of common schools; or the infirmary directors of any county. Each of these bodies is treated as a landowner, or a person interested in the construction of a ditch, upon precisely the same basis as private owners. So a municipality, an incorporated village or a city, is treated as if it were an individual owner. It may have no such especial interest in the construction of a sewer for the drainage of a street as would induce it to adopt a particular sewer or a particular ditch, whereas the contemplated county ditch improvement passing into or through a city or village might be essential to the welfare, the convenience or health of the people ■ living along the line of the proposed improvement. I see no reason why one person, natural or artificial, who may be liable to pay a portion of the cost of such improvement, should be permitted to maintain an action to enjoin the construction of the entire improvement upon the ground stated in this petition. As already stated, this petitioner, although he says he is a heavy tax-payer in the municipality, is suing only on behalf of the municipality as a corporate entity.

Our judgment is that the demurrer to the petition should be sustained for the reason that the petition does not state facts constituting a cause of action.