text:
    STREET RAILWAYS,
    [Summit (8th) Circuit,
    October 11, 1909.]
    Winch, Henry and Marvin, JJ.
    Northern Ohio Trac. & L. Co. v. Robert McAfee.
    Company Liable if Motorman Makes No Effort to Stop His Car to Prevent Accident.
    Although the driver of a wagon may he negligent in attempting to cross a street car track in front of an approaching street car which he sees, still the motorman who saw the driver’s position, is negligent, and the company liable, if he fails to use reasonable efforts to stop his car in time to avoid a collision.
    Error.

      'Rogers & Rowley, for plaintiff in error.

      L. 8. Pardee and G. M. Anderson, for defendant in error.
   WINCH, J.

The injury complained of in the petition in this case for which á recovery was had at the hands of a jury, was received at the corner of Fir and East Market streets, in the city of Akron, and was occasioned by a collision between the car of the traction company and a high wagon of McAfee on which he was riding.

McAfee was crossing the track of the traction company and was nearly over when the car struck the tire of his rear wheel, his wagon was slewed around and he was spilled out.

The record discloses the fact that McAfee on the wagon and the motorman on the car had a free and unobstructed view of each other for some moments before the accident happened. McAfee knew the car was coming and the motorman knew that McAfee was about to cross the track, from the moment the noses of his horses entered upon the space between the rails. •

McAfee, in his petition, claims the benefit of the doctrine" of last chance. In other words, he says, in effect, that though he may have misjudged the situation and his ability to cross the track in safety before the ear reached him, still, after the motorman saw him he could have prevented the collision with the rear wheel of the wagon if he had done his best to stop the car. If the speed of the ear'was such that the motorman could have stopped the car in the time that elapsed after the noses of the horses crossed the first rail of the track and until the rear wheel passed the second rail of the track and the overhang of the car, then it was his duty to do so and to avoid hitting the wagon.

Thus arises the question whether it was not the motorman who misjudged as to whether the wagon would clear the track before his . car reached it. This question was referred to the jury, and, though the brief of plaintiff claims that there is no evidence in the record to sustain the claim that the motorman did not use his best efforts to avoid the collision after he saw McAfee’s danger, still the same brief urges upon this court that it adopt the traction company’s evidence that the car was going at a low rate of speed, about five miles an hour, up hill, instead of at the rate of fifteen or twenty miles an hour, as claimed by the said McAfee, and if the jury believed the traction company’s witnesses, they could easily figure out whether the motorman could, by the exercise of proper care, stop his ear in a distance of about twenty-five feet.

If the motorman had time to stop his car after he saw McAfee’s danger and didn’t do it, it is a proper conclusion that he didn’t do all he could to stop it.

The doctrine of last chance concedes the plaintiff’s initial negligence, as we bave, in a consideration of this ease, and, as the benefit of said doctrine was claimed in the petition, there was some evidence to establish it and it was properly expounded in the charge of the court, we are loath to say that there should be no recovery in this case, though it is a close one.

The requests to charge that were made by the traction company before argument and not given, were properly refused because they made no reference to the very proposition on which this judgment is sustained. The request after argument, which was refused, ignored the claim in the petition that the wagon as well as the person of McAfee, was injured.

The judgment is affirmed.

Henry and Marvin, JJ., concur.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    CHARGE TO JURY.
    [Cuyahoga (8th) Circuit,
    October 11, 1909.]
    Winch, Henry and Marvin, JJ.
    Ola Powers et al. v. Sophia Magdalena Boehme et al.
    1..BÍII of Exceptions Necessary to Review Charge.
    A claim that a charge to the jury is erroneous because It gives mere abstract propositions of law inapplicable to the case can not be considered without a bill of exceptions exhibiting the evidence in the case.
    ' 2. Error Not Predicated on Erroneous Sentences In Charge Taken by Themselves.
    Where concededly correct sentences in a charge modify other sentences claimed to be erroneous, the charge as a whole being correct, no reversible error can be predicated upon the erroneous sentences, taken by themselves.
    3. Recalling .Jury and Emphasizing Parts of Charge Not Prejudicial.
    It is not prejudicial error to recall the jury and emphasize certain portions of the charge previously given, if the circumstances of the trial warrant it.
    Error.
   WINCH, J.

This was an action to contest a will. The case was submitted to a jury and by its verdict the will was sustained.

The .only claim of error asserted by plaintiff in error is that the charge is faulty in several respects. The bill of exceptions exhibits the charge in full, but gives none of the evidence- adduced at the trial. We are therefore bound to conclude that the verdict was warranted by the evidence and it becomes difficult, if not impossible, to say that any technical defects in the charge, even if they exist, were prejudicial to the rights of the plaintiff in error.

For instance, the claim that certain paragraphs of the ■charge are mere abstract propositions of law and not made to apply directly to the case on trial can not be considered without the facts which may, or may not, have warranted them. Certainly no prejudice can arise from the charging of mere abstract propositions of law, unless the evidence in the ease makes them inapplicable.

Claim is made that certain sentences in the charge, taken by themselves, are erroneous and inconsistent with other sentences conceded to be correct. As we read the charge the eoneededly correct sentences explain and modify the ones which are claimed to be erroneous and all must be read together. This charge, as a whole, is a correct exposition of the law of testamentary capacity and the degree of undue influence which must be shown to have been exerted before a testator can be said to have been overborne by it in the making of his will.

We find no prejudicial error in recalling the jury and giving it further instructions; the circumstances under which the jury was recalled are not shown. The claim that the ad-, ■ditional charge only emphasized the original charge is' correct and doubtless it was for that purpose the jury was recalled; we do not know what facts the. trial - judge had before him that he desired to impress upon the jury. We find no error of law in the additional charge, if it was applicable to the facts of the ease.

There was no error in correcting the bill of exceptions at the place where the word “not” had been left out by the stenographer. The journal entry allowing this correction says that the court “found from the evidence” that a clerical error had been made. Part of this_evidence may have been a judge’s own recollection. With such bill of exceptions as we have in this case we can do nothing but affirm the judgment.

Henry and Marvin, JJ., concur.


author: Wildman, j.

text:
    ELECTIONS.
    [Lucas (6th) Circuit,
    October 5, 1907.]
    Wildman, Haynes and Parker, JJ.
    Henry Conrad v. David T. Davies, Jr., Aud.
    No Liability by County For Cost of Election Booths.
    A county is not liable for the cost of election booths constructed for use within a municipality located in that county.

      C. S. Northup and O. H. Masters, for plaintiff.

      L. W. Wachenheimer, Pros. Atty., and Ben. W. Johnson, Asst. Pros. Atty., for defendant.
   Wildman, j.

This is a proceeding brought under Sec. 5207 R. S. (Sec. 13472 Gr. C.) as to the submission of a controversy to a court without pleadings and upon an agreed statement of facts. The section reads:

“Parties to a question which might be the subject of a civil action may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court which would have jurisdiction if an action were brought; but it must appear by affidavit that the controversy is real, and the proceedings in good faith, to determine the rights of the parties; and the court shall, thereupon, hear and determine the case, and render judgment, as if an action were pending. ’ ’

The preliminary proceedings under this section have been followed and the court is satisfied that the submission is in good faith and by parties between whom a controversy has arisen which might be the subject of a civil action. The situation is, briefly, this: This plaintiff, Conrad, is a contractor who entered into an arrangement with board of deputy state supervisors and inspectors of elections for tbe city of Toledo, Lucas county, Ohio, to build certain election booths for an aggregate price, as shown by the agreed statement, of $7,245. He has so far carried out the arrangement as to have constructed booths amounting under the agreed price to $6,800, and has received his pay for a part of this amount — $3,000—leaving still his due $3,800. The board of supervisors and inspectors, on or about September 3d, 1907. approved this claim, finding that there was then due and payable to him upon the contract said sum of $3,800, and they directed the defendant, the county auditor, Davies, to issue an order upon the treasurer of said Lucas county to pay the sum out of the moneys of said county in his custody, under his control as such treasurer. The claim was then presented to the auditor with the demand that he issue his warrant upon the treasurer for the amount, and this the auditor refused and still refuses to do. The agreed statement shows that the city of Toledo, located in said county, at the last federal census, had a population of more than 11,800; which allegation is material as to certain sections of the statutes supposed to be applicable to the present claims. The plaintiff asserts and the defendant denies that by reason of the facts agreed upon, the plaintiff would be entitled in an action in mandamus, if one were in this court, properly commenced and prosecuted, to have a peremptory writ issued in his favor commanding the defendant to issue his warrant upon the treasurer as aforesaid. Both parties pray the court to hear and determine the case and render judgment as if an action in mandamus upon the relation of plaintiff as relator, against defendant as defendant, were heard and now pending upon said controversy.

The sections which have direct or indirect bearing upon the question submitted to the court here are Secs. 2966-27; 2926Í and 2926d R. S. (Secs. 4942, 4946, 5052 G. C.) There are some other sections which should be read in connection with these, perhaps, but they are so closely associated with them in the statutes that I will not stop to make more specific reference to them; nor do I care to make any detailed analysis of these three sections. We are disposed to adopt the view contended for by the assistant prosecuting attorney, representing the defendant, of Sec. 2966-27, enacted thirteen years ago, as being practically, by virtue of later legislation, although not specifically, repealed. It is, we think, repealed, or at least modified, by implication, by virtue of the repealing clause in 97 O. L. 243, applicable to acts and parts of acts inconsistent with this later legislation. The contention of the contractor, through his attorneys, is, that Lucas county is liable under thfe existing statutes for the costs of these election booths constructed for use within the city of Toledo. The language of the sections to which I have referred is somewhat ambiguous and difficult of construction. A literal and technical interpretation of their phraseology may justify the claims of the relator. We are not, however, disposed to adopt .such construction, or any construction which would result in throwing the burden of the costs of constructing election booths to be used entirely within the municipality of Toledo, upon the county of Lucas and requiring payment therefor from the county treasury while the expenses incident to the taking of the votes in township precincts or in the precincts in non-registration towns is borne entirely by the taxpayers outside of the city of Toledo; we think that the construction of the statutes contended for by the assistant prosecuting attorney, while it may not meet the technical phraseology of these sections, is such as must have been contemplated by the legislature in the enactments. The courts should not adopt a construction of the statutes which will be an unreasonable construction, and one which can not be presumed to have entered into the minds of the legislature in their enactment. And this view as to our duty in the rule of construction, is the governing principle with us in the present case. I might tarry to discuss the precise meaning of words and phrases used by the legislature in the sections to which I have made reference, but it would not be profitable and it suffices that it is the judgment of the court that the contention of the plaintiff here — Conrad—should not prevailthat the county of Lucas is- not liable for the cost, of these booths, and the writ prayed for is refused; and the petition dismissed. The costs will be upon the plaintiff.

Haynes and Parker, JJ., concur.


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

text:
    ELEVATORS — NEGLIGENCE.
    [Hamilton (1st) Court of Appeals,
    December, 1913.]
    Swing, Jones and Jones, JJ.

      Mary Connelton, Admx. v. Adolph Loeb.
    Merely Finding Deceased at Bottom of Elevator Shaft Not Negligence-Per Se.

      The mere finding of the decedent employe fatally hurt at the bottom of an elevator shaft in the building in which he was at work, does not make out a case of negligence in the lighting and guarding of the shaft, where no one saw the decedent fall into the shaft or knew how the accident happened which resulted in his death.

      McMullen & McMullen and Otto Pfleger, for plaintiff in error.

      Cohen, Mach & Hurtig, for defendant in error.

      Affirmed, no op., Connelton v. Loeb, 92 Ohio St. 524.

   JONES (E. H.), J.

At the close of the plaintiff’s evidence offered at the trial of this ease in the court below the court sustained a motion by defendant for a directed verdict. A motion for a new trial was later overruled and judgment rendered for the defendant; and to reverse said judgment error is prosecuted here.

Plaintiff’s intestate was a boy nineteen years of age, employed by the defendant as an assistant in the office. The day before his death, after having been missed from his work for over an hour, he was found with his skull fractured at the bottom of the elevator shaft, and he died in the city hospital as a result of said injury.

The plaintiff’s petition avers that the area way surrounding the elevator shaft and the entrances thereto were insufficiently lighted, and that improper and insufficient guards and gates were furnished to protect employees and others from falling into the shaft: and that intestate by reason thereof fell into the said shaft, and on account of plaintiff’s negligence in not properly lighting and protecting the openings into said elevator shaft he received the injuries which caused his death.

No one saw the accident, and no evidence whatever was offered as’ to how it occurred. In fact, the evidence does not prove that his death was accidental or due to the alleged acts of negligence in any way.

In the ease of Lake Shore & M. S. Ry. v. Andrews, 58 Ohio St. 426 [51 N. E. 26], it is held, quoting from the syllabus:

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

And in the fifth paragraph of the syllabus in Cleveland Terminal & V. Ry. v. March, 63 Ohio St. 236 [58 N. E. 821; 52 L. R. A. 142], the same principle is stated in the following language:

“To establish negligence, there should be either direct proof of the facts constituting such negligence, or proof of facts from which negligence may be reasonably presumed. There should be no guessing by either court or jury. ’ ’

The court below followed the proposition of law above stated by our Supreme Court in directing the verdict in this ease, and an examination of the bill of exceptions containing all the evidence offered by the plaintiff below forces us to the conclusion that the trial court wás not only justified in instructing the verdict rendered, but that his refusal so to do would have been error.

Judgment affirmed.

Swing and Jones (O. B.), JJ., concur.


author: SHIELDS, J.

text:
    CHARGE TO JURY.
    [Licking (5th) Court of Appeals,
    March Term, 1915.]
    Shields, Powell and Houck, JJ.
    Fruit Dispatch Co. v. F. Lisey & Co.
    1. Refusal to Give Instructions Embodying Terms of Agreement Held Erroneous.
    It is error to refuse to give to the jury before argument charges which have been submitted for that purpose and which embody substantially the provisions of the agreement upon which the action is based.

      .2. Instruction Permitting Jury to Add to Terms of Contract, Erroneous.
    In charges which are given to the jury it is error to include one which in effect permits the jury to add to the agreement, but they should be restricted to a determination of the rights of the parties under the agreement as made and entered into by them.
    ERROR.

      Jones & Jones and Watson, Stauffer <& Davis, for plaintiff in error.

      Smythe <& Smy the, for defendant in error.
   SHIELDS, J.

A petition in error is filed herein to reverse the judgment of the court of common pleas, in which a judgment was rendered in favor of the defendant in error against the plaintiff in error.

In its second amended petition filed, the plaintiff alleged, in substance, that it is and was on July 19, 1906, a corporation, and that the defendant is and was on said date a partnership doing business in said Licking county, Ohio. That on said ■date—

“the plaintiff and defendant entered into an agreement in writing for the purpose of fixing and determining the terms and conditions on which they would then and thereafter do business by and with each other in the matter of purchasing and selling bananas and fruit, and that by the terms of that agreement it was agreed by and between the plaintiff and defendant that all bananas and fruit which then or thereafter was sold by the plaintiff to the defendant should be sold and purchased under and pursuant to the terms and provisions which were then known and designated by the plaintiff as ‘uniform conditions covering sales,’ and which uniform conditions covering sales provided that' all bananas that might then and thereafter be sold by the plaintiff to the defendant and purchased by the defendant from the plaintiff should be sold and delivered f. o. b. every ear at the seaboard, with the exception of special sales, which are mentioned in said agreement. It was further agreed that after delivery by the plaintiff of bananas and fruit to the carrier at the seaboard, the same would be at the sole risk of the defendant, and that every order for or sale of bananas or fruit given or made after the same should have been shipped at the seaboard should relate back to the time of such shipment, and should have the same force and effect in every respect as if made prior to such sale. ’ ’

That other and further provisions are incorporated in said agrfeemeiit, defining the rights and liabilities of said parties, which are set forth in said petition in minute detail and at considerable length, but which are not deemed' necessary to set out or refer to herein at this time. That on November 27, 1908, when said written agreement was in full force, and in pursuance of the terms of said agreement, and upon the order of the defendant, the plaintiff sold and delivered to the defendant one carload of Jamaica 9-hand bananas, at the agreed price of $181.-08, for which said sum, with interest from said date, judgment was asked.

To the foregoing second amended petition of the plaintiff, the defendant in its answer set up two defenses, one containing a general denial, and the other:

“That on or about the, date stated in plaintiff’s second amended petition the defendant ordered a car-load of bananas from plaintiff, to be delivered to defendant in Newark, Ohio. That said bananas were not delivered to it by plaintiff and were not accepted by the defendant • that on the contrary thereof,said bananas arrived in said city of Newark spoiled and were of'no value. That said bananas were spoiled by reason of the carelessness and negligence of the plaintiff in preparing and packing the same for shipment and were accepted by plaintiff from the carrier at Newark, Ohio. ’ ’

In a reply filed by the plaintiff to the second defense in said answer a general denial is made of the allegations therein, except that the defendant ordered of plaintiff a car-load of bananas.

Upon the issues thus made trial was had, resulting in a verdict for the defendant. Upon a motion for a new trial being overruled, judgment was entered upon said verdict for the defendant, and a petition in error, with a bill of exceptions, was filed in this court for a review of said judgment and proceedings in said court of common pleas.

Of the numerous grounds of error alleged in said petition in. error for a reversal of said judgment, those only which' are deemed important, and which were argued to this court on behalf of plaintiff in error, will be adverted to in this opinion.

The record shows that this case has been tried three different times in the common pleas court and has been passed upon twice by the circuit court, each time the judgment below having been-reversed because of being against the manifest weight of the evidence and contrary to law, and the case is now again in this court. If there is any virtue in the legal maxim stare decisis, it would seem that this ease ought not to have many more years to run — its judicial history should be ended. But while the uncertainty of the administration of the law and of the law’s delay should not receive judicial sanction in encouraging, protracted or unnecessary litigation, still it is the constitutional privilege of litigants to pursue their legal rights in methods of their own selection. As indicated, this case was twice reversed on the weight of the evidence, and but for the statute now in force that the same court shall not grant more than one new trial on the weight of the evidence against the same party in the same ease, we would reverse the judgment of the court below on that ground, if for no other, because an examination of the evidence contained in the bill of exceptions in connection with the agreement made between these parties, and the order given for the bananas in question for which a recovery is laid in the petition of the plaintiff below, shows, in our judgment, that the verdict of the jury was clearly against the weight of such evidence. A reading of said bill of exceptions shows that Fred Lisey, one of the defendant’s witnesses, and the principal defendant herein, on the last trial testified in direct examination that he ordered of the plaintiff “Jamaica firsts,” but that the bananas shipped were not “firsts,” and therefore the order was; not filled as given. On cross-examination of said witness on page 147 of the record appears the following:

“Q. "When did it occur to you to say, as you did yesterday afternoon, that the bananas in this shipment were not ‘firsts’?' A. They were not ‘firsts.’
“Q. When did it occur to you to make that statement ? A. As soon as I looked into the car.
“ Q. Don’t you know that in all the controversy in this ease for five years that you have not mentioned that feature of this case béfore? A. I don’t know.
“Q. Do you say that you ever complained to anybody about this car on account of their not being ‘firsts’? A. I ■couldn’t say about that.
“Q. If so, when did you make it?^ A. I think I said in my former testimony that they were a thin skinned banana.
“Q. What does it take to make a ‘Jamaica 9’? A. It takes 9-hands.
“Q. Did you know at that time how the Fruit Dispatch Company classified its bananas? A. Yes, sir.
“Q. You knew that they classified 9-hand as ‘firsts’? A. Yes, sir.
“Q. Irrespective of what they weighed, you know that, a 9-hand Jamaica banana was a ‘first’ irrespective of what it weighed? Yes, sir, it was called a‘first.’
“Q. These were called ‘firsts.’ A. Yes, sir.
“Q. And they were ‘firsts.’ A. They were 9-hand. ”

The best evidence showing what the order really given was is to be found in plaintiff in error’s exhibit “A,” at page 82 of the record, which appears to be an acknowledgment of such order by the resident manager of the plaintiff in error at Columbus, . Ohio, to the defendant in error, and which is in the words and figures following, to wit:

“Columbus, O., November 27, 1908.
“F. Lisey & Co.,
Newark, Ohio.
“Dear Sirs: We beg to acknowledge the receipt of your telephone order for one car Jamaica nine hand bananas, to be shipped from Philadelphia on November 27, 1908, or as near thereafter as possible. The price to be $1.20 per cwt. f. o. b. seaboard.
“This memorandum is merely an acknowledgment and not an acceptance of your order, which, is to be accepted only by shipment, and upon and subject to the terms printed on the back hereof.
“Yours truly,
“Fruit Dispatch Company,
“H. E. Reynolds.”

Plaintiff in error’s Exhibits “D” and “E” also show that on November 27 and November 28, 1908, the defendant in error was advised that said shipment was of Jamaica 9’s, which, when considered with the admissions of the defendant in .error, leave no doubt in the mind of the court as to the order having been filled as given. We think the evidence is that Jamaica 9-hand’ bananas were ordered, as shown by s&id order, and said order governs, notwithstanding the claim made by the defendant in error in this respect, and if the bananas were furnished as ordered the provisions of said agreement would control. We* are led to thus remark upon the effect of this evidence because of its connection with the court’s instructions to the jury in its. general charge as follows:

“If, however, you find from the evidence that the bananas in question, delivered on the car at Philadelphia, were not of the kind and quality ordered, or were not properly loaded by the plaintiff, and delivered to the railroad company in good eon-dit'on, and by reason thereof the bananas were injured in transit, then the defendant was not bound to accept this car, and you will return a verdict for the defendant.”

Under the agreement made and order given, we think this; instruction was prejudicially erroneous. We are not unmindful of the rule laid down in the case of McAllister v. Hartzell, 60 Ohio St. 69 [53 N. E. 715], that where the jury fmd on any one of several issues presented by the pleadings the verdict may be upheld; but the ease here is not of that character under the terms of said agreement and order, nor could such a claim, if made, be sustained in our judgment in the face of the record.

As was said by Judge Donahue in announcing the opinion of the circuit court in this case when it was first heard by that court, when speaking of the entire absence of evidence that the bananas were to be delivered in good condition at Newark under the terms of the contract:

“We recognize that it is an extremely delieate matter and sometimes error for the court to say there is no evidence in the ease in respect to an issue involved therein, but it nevertheless becomes the duty of the court, when there is no evidence sustaining an alleged defense, upon proper request of the party, to so instruct the jury. And we think this was a case wherein the court should have instructed the jury in that regard. ’ ’

It is also urged that the court below erred to the prejudice of the plaintiff in error in refusing to give to the jury in charge before argument requests Nos. 10, 12 and 14, and each of them, submitted among others by the plaintiff in error. These requests, as we interpret them, embody substantially the provisions of said agreement to which they relate and, in our judgment, were proper instructions to be submitted to the jury, and in refusing to so give them we think that the action of the.court below was prejudicially erroneous.

We are also of the opinion that requests Nos. 1 and 2, submitted to the jury before argument on behalf of the defendant below, were not proper but wrong. Request No. 1 is as follows:

“A contract of sale for the delivery of perishable goods in carload lots, f. o. b., shipping point, where the car is loaded by the seller, and not by the common carrier, requireá of the seller that he should properly load and deliver such car in good con■dition to the railroad company. There the responsibility of the seller ends, but if he should fail, in any particular, in properly loading such car and deliver it to the railroad company in right condition, and by reason of which failure the goods were injured and destroyed in transit, the buyer is not bound to receive the same, nor does the property in the goods pass to him until the obligation of the shipper is disehaz-ged with reasonable care and diligence. ’ ’

This instruction was certainly proper in so far as it relates to the. proper loading of the bananas on the ear and the delivery of such car to the railroad company for shipment, but it undertakes to and does, in effect, say to the jury that any failure on the part of the plaintiff in this respect, resulting in injury, to the fruit in transit, would absolve and discharge thei defendant from all obligation to receive it, and that tbe title to the same did not pass, etc. This, we think, was in direct violation of the express terms of the agreement pleaded and not denied.

Said request No. 2 is as follows:

“The law of such contract requires that the seller shall do that thing which is right and reasonable for the protection of perishable property, to be delivered f. o. b. at shipping point, and the question as to what is right and reasonable is a question for the jury.”

This request delegates to the jury the exercise of a power to determine what was and what was not a proper method to be employed for the preservation of perishable property f. o. b. In other words, it tabes away from the shipper and makes the jury the judges of what should and what should not be done in this respect. The province of the jury was not to make ah agreement for these parties, but to determine their rights under the agreement made, entered into and acted upon by them. In so instructing the jury, we think the court below erred to the prejudice of the rights of the plaintiff in error.

It is also urged that the court below erred in the admission and rejection of certain evidence offered upon the trial. If this were the only error alleged in the record for the reversal of this judgmnt, we should hesitate, if not .refuse, to reverse it; but in addition to what has already been said, it appears that on page 133 of the record, when the witness Lisey was describing the condition of the bananas on Monday, as they reached, Newark on- the Sunday preceding, on direct examination was* asked the following question: v

“Q. In what condition would they have to be received by, you — a wholesale dealer — to be in marketable condition?”

This question was objected to, which objection was overruled, and an exception duly taken-.

Again, on page 139 of the record, it appears that said wit-' ness, on direct examination, was asked the following question:'

Q. Taking into consideration, Mr. Lisey, the condition of the bananas when you first saw them, and the condition of the car when they arrived in Newark, and the length of time that they had been on the road, from your 28 years’ experience in the banana business what do. you say as to the condition of the-bananas when they actually went into the ear, or when they left the hold of the ship ? "What condition must they have been in?
“By Mr. Davis: I object.
“The Court: The objection is overruled.
“By Mr. Davis: Note an exception.
“A. The bananas were either too hot coming out of the steamer, or the car was too hot when they put them in the ear.
“By Mr. Davis: I move to rule out the answer.
“The Court: The motion is overruled.
“By Mr. Davis: Note an exception.”

We think that both of the foregoing questions, including the answer to the latter question, were objectionable, and that it was. error on the part of the court in admitting them.

Powell and Houck, JJ., concur.


author: "WINCH, J.

text:
    ATTACHMENT AND GARNISHMENT.
    [Cuyahoga (8th) Circuit,
    March 11, 1907.]
    Winch, Henry and Marvin, JJ.

      T. H. Shipman v. J. W. Stone.
    Claim for Rent Is One for Necessaries.
    Rent due under a contract of lease of apartments as a place of residence, is a claim for necessaries, even though the tenant surrenders the premises before the beginning of the final month and the landlord rerents the premises for a portion of that month.
    [Syllabus by the court.]
    ERROR.

      'L. B. Ware, for plaintiff in error.

      Howland & Niman, for defendant in error.

      Affirmed, no op., Shipman v. Stone, 80 Ohio St. 715.

   "WINCH, J.

This is a proceeding to reverse an order of the eommon pleas court of Cuyahoga county, overruling a motion to dis- ‘ charge an attachment issued by a justice of the peace on a claim for necessaries. The agreed statement of facts, contained in the bill of exceptions, advises us that:

“On February 1, 1906, the plaintiff by his agent H. R. Crow, entered into a written lease with the defendant, and agreed to rent to him suite No. five (5) in the ‘ITelberta’ apartment house, as a place of residence for himself and family, for the term of six months for the sum of one hundred and thirty-two ($132) dollars, which sum was to be paid by the defendant, in installments of twenty-two ($22) dollars a month, on the first of each and every month in advance.
“The-defendant is a resident of the state of Ohio, and a married man, and the head of a family and its support, and the wages, of which ten per cent is sought to be attached, were earned during the month ending August 18, 1906, and are necessary for the support of himself and his family, and he claims the same as exempt from execution. He has no homestead.
“The defendant continued to occupy the premises until the 18th day of June, 1906, at which time the defendant moved out of the premises, and at the time of the moving he gave two notes to the plaintiff, one of twenty-two dollars securing the June rent, and the other twenty-two dollars securing the July rent. The first note for the June rent was paid at maturity. The defendant refused to pay the second note. The lease expired on July 31, 1906.
“The plaintiff without any authority from the defendant, proceeded to rent the premises after they were vacated, to a new tenant. This was done July 1, 1906, but said new tenant did not move in until the 9th day of July, for the rent had already been paid by him for the month of July, but all the money received by the plaintiff from the new tenant for July was seven dollars and fifty ($7.50) cents, he being allowed by plaintiff to occupy the premises during the entire month of July if he saw fit, as an inducement to rent tbe said premises. Suit was brought by the plaintiff to collect fourteen dollars and fifty ($14.50) cents, being the difference between what the defendant should have paid and what the new tenant actually paid fot* the remainder of the term of six months. The plaintiff had no other opportunities to rent the premises after they were vacated by defendant.”

In the case of Smith v. Getz, 29 O. C. C. 216 (9 N. S. 321), we held:

“A month’s rent for a dwelling-house occupied by a man and his family is a claim for necessaries, and as such ground for attachment, as provided in Sec. 552 R,. S., and does not lose its character as a claim for necessaries, by the tenant moving out during the month and renting and occupying another house. ’ ’

Counsel for plaintiff in error most ingeniously distinguishes the Smith case from the ease at bar, as follows:

‘1 In the case of Smith v. Getz, can anything be found in the opinion of the court that decided that when the dwelling is re-rented to' a new tenant, that during the time it is occupied by the new tenant, it is a necessary within the meaning of the statute to the old tenant! Can it be said that during the month of July it was a necessary both to the new tenant and the plaintiff in error! .On the contrary, the court uses the expression ‘when a reasonable amount of necessaries are furnished, ’ not contracted to be furnished. It is the law of sales in Ohio, that upon a failure of the vendee to receive the goods from the vendor, he has two remedies, either to keep the goods and sue for the difference in the price or deliver the goods to the vendee and sue for the contract price; no one has ever thought of bringing an attachment in this kind of a ease. If the defendant in error is endeavoring to make the plaintiff in error pay for necessaries that never were furnished, but afterwards sold at a loss, the defendant in error’s remedy is by a suit for damages for the loss sustained. ’ ’

The trouble with this suggestion is that it assumes that the action brought by the defendant in error in the justice court was for damages for breach of the lease contract, whereas it appears to be an action on the contract for rent.

The affidavit alleges that the action is brought “for rent of a suite of rooms. ’ ’ The agreed statement of facts bears out the claim. The fact that the tenant gave notes for the unexpired term of the lease shows that he did not consider the contract rescinded. The landlord’s renting to another for a part of the unexpired term of itself raises no conclusive implication that he considered the contract rescinded. To hold a tenant who abandons possession of the premises responsible for the rent for the balance of his term, the landlord is not bound to let the premises remain idle.

It is the landlord’s moral duty, if not his legal duty, to ease the tenant by reletting for the best rent he can get, and his so doing does not of itself work a surrender of the lease.

That there may be a surrender of the lease, both parties must agree to it. See cases cited in 32 American Digest, Century Ed. 871.

Considering as we do, that the action here brought was for rent under the contract of lease, and not for damages for breach of the lease, it follows, in consonance with our former ruling, that the claim is for necessaries within the purview of the statute, and the judgment is affirmed.

Henry and Marvin, JJ., concur.


author: RICHARDS,' J.

text:
    CHARGE TO JURY — RAILWAYS.
    [Wood (6th) Court of Appeals,
    May 8, 1913.]
    Richards, Chittenden and Kinkade, JJ.
    Hocking Valley Ry. v. James, Trustee, et al.
    1. Request for Special Instructions Made in Writing Deficient.
    Where a bill of exceptions merely shows that a request for special instructions was made in writing before argument, there is a failure to show compliance with the statutory provision that the instructions asked for should be in writing and that the request to give them before argument be made.
    2. Company Operating Train on Tracks of Another Company.
    An averment in the petition that the locomotive which it is claimed set the plaintiff’s property on fire was being operated in a southerly direction is immaterial and need not be proven; . nor is it necessary the jury should find the engine was being operated on defendant’s road, when there is no contention that the company owning the road was operating that particular engine.
    3. Prior and Subsequent Fir^s on Right of Way Admissible.
    In an action for recovery for property destroyed by fire started by a passing locomotive testimony is competent as to other fires occurring along the railway right of way immediately be* fore or after the one complained of.
    [Syllabus by the court.]
    ERROR.

      Wilson & Rector, F. C. Amos and F. P. Riegle, for plaintiff ip error.

      Ladd <& James and Benj. F. James, for defendants in error.
   RICHARDS,' J.

Tbe action in tbe court of common pleas was brought by-William B. James, as trustee in bankruptcy of Radeloff Brothers, and Tbe Connecticut Fire Insurance Company ' against Tbe Cleveland, Cincinnati, Chicago & St. Louis Railroad Company and Tbe Hocking Valley Railway Company, to recover for the loss of a certain store building and contents located at Lemoyne in this county and claimed to have been destroyed by fire in March, 1911, by the negligence of the defendants. The property destroyed was the property of Radeloff Brothers and was insured against loss by fire in the Connecticut Fire Insurance Company. The loss for which the insurance company was liable was adjusted between the company and the assured and the amount as between those parties was agreed to be the sum of $1,546.12, which amount was paid by the insurance company. Thereupon this action was brought by the trustee of Radeloff Brothers, the assured, and the Connecticut Fire Insurance Company to recover of the two railroads named the total loss claimed, viz., $2,073.64.

It is averred in the petition that the Hocking Valley Ry. was the owner of the right of way and that the other railroad company, known as the “Big Four.” was operating a train on the occasion in question and from it the fire is averred to have-originated. The property destroyed was situate about a hundred feet from the track of the railway company. On tlm trial in the common pleas court a verdict was rendered in favor of the plaintiffs and against the Hocking Valley Ry. for $2,222.67, the jury finding that the Cleveland, C., C. &• St. L. Ry. was not liable, and judgment has been rendered upon this-verdict.

The ease is brought here on a petition in error and a bill of exceptions which is certified in the usual form to contain all the evidence. One of the principal grounds of error upon which reliance is placed is that the verdict is not sustained by sufficient evidence, and issue was joined between the parties as to the existence and terms of the insurance policy which was claimed to cover the property destroyed by fire, the petition ■averring separate amounts of insurance upon different classes of property covered by the policy and destroyed by fire. The insurance policy w-as therefore an important item of evidence, and was introduced in evidence by the plaintiffs and received by the court and marked exhibit “B,” but is nowhere attached to the bill of exceptions. Because of this omission we are not authorized to consider the case upon the weight of the evidence. It has been many times held that the failure to attach exhibits precludes the reviewing court from passing upon the -weight of the evidence. A few eases illustrating the principle may be cited: Foster Coal Co. v. Moherman, 6 Circ. Dec. 437 (9 R. 544), failure to attach map; Hohly v. Sheely, 11 Circ. Dec. 678 (21 R. 484), failure to attach photographs; Michigan Cen. Ry. Waterworth, 11 Circ. Dec. 621 (21 R. 495), failure to attach photograph; State v. Hinkelman, 32 O. C. C. 1 (13 N. S. 321), failure to attach bottle. This latter ease was affirmed, no op., 83 Ohio St. 446.

It is further contended that the trial court erred in refusing to give to the jury in the charge certain instructions before argument. The bill of exceptions recites the following: “Before argument, counsel for defendant in writing requested the court to specifically charge the jury as follows”: The statute, See. 11447 G. C., provides that either party may present written instructions to the court on matters of law and request 'them to be given to the jury.

It does not appear from the language of the bill of exceptions that the instructions asked were in writing as required by this statute, nor that they were requested to be given before the argument, but simply that the request was made in wr'ting •and before argument. Under the statute the request need not be in writing but the instructions which are requested to be given must be in writing.

The first request so asked to be given -was properly refused by the court. It involves a statement that the jury must find for the defendants if the evidence fails to “satisfy” them. Of course it is fundamental that an ordinary civil action may be determined by a preponderance of the evidence, and the language of the instruction asked is condemned in Cincinnati, H. & D. Ry. v. Frye, 80 Ohio St. 289 [88 N. E. 642; 131 Am. St. 709].

The next instruction asked contains in substance a statement that the jury can not find for the plaintiffs unless they should find that the engine was being operated on defendant’s road in a southerly direction. We find no error in the refusal of the court to give this instruction. It is true the petition avers that the engine was being operated in a southerly direction, but the mere direction in which the engine was proceeding was immaterial and need not have been averred, and having been averred need not have been proven. The instruction is open to the further objection that it requires a finding from the jury that the engine was being operated on defendant’s road, while it was not contended that the railroad belonged to the Cleveland, C., C. & St. L. Ry., which company was sought to be held only because it was claimed to have been operating the engine.

We deem it unnecessary to discuss in detail the two remaining instructions asked to be given by counsel for plaintiff in error. It is sufficient to say that we find no error in the action of the court in refusing to give them. It is contended by counsel that the court erred in its general charge to the jury, but the bill of exceptions fails to disclose that counsel lodged any exception to the action of the court in giving the general charge.

Numerous exceptions appear in the record to the admission and exclusion of evidence. Several of those exceptions relate to the admission of testimony offered by plaintiff as, to a fire along'the right of way shortly before or shortly after the fire which destroyed the property of Radeloff Brothers. The court admitted evidence of that character, but it seems to have been limited very closely to the occasion of the fire in controversy, and such evidence has been frequently held to be competent. The circuit court sitting in Ottawa county held in Lakeside & M. Ry. v. Kelly, 6 Circ. Dec. 555 (10 R. 322), that other fires about the time and immediately after the passage of the locomotive might be shown. In the case of Lake Shore & M. S. Ry. v. Anderson. 27 O. C. C. 577 (7 N. S. 17), it is held that fires originating soon after locomotives of the company had passed along the road might be shown. We think that the trial court committed no error in the admission of this class of evidence, limited as it appears to have been.

It is insisted that prejudicial error was committed in the admission of Exhibit “A,” being four yellow sheets containing items of merchandise and their value as made out and attached to the proof of loss made to the insurance company after the fire. Andrew Radeloff, one of the assured, had testified that he and his brother spent the entire day with the adjuster in making these items and affixing the figures thereto. The items are very numerous, being contained, as stated, on four pages, The witness testified that these items were correct. The trial judge gave ample opportunity to counsel for the defendants to cross-examine relative to this list, and admitted it in evidence to save time in the trial of the cause. Counsel for defendants requested of the trial court an opportunity to examine exhibit “ A ” so that they might cross-examine if they saw fit, and their request was granted by the court, as appears in the earlier portion of the bill of exceptions. The matter again came up immediately before plaintiffs rested their case, and counsel declined to avail themselves of the privilege so accorded, and it was only after this situation had arisen that the court permitted the admission in evidence of the exhibit. It is impossible to examine this bill of exceptions without reaching the conclusion that the witness Andrew Radeloff in effect testified that the contents of Exhibit “A” are correctly stated and were furnished by him. and we think under all the circumstances of the case that no error was committed to the prejudice of the defendants by the admission of exhibit “A” in evidence.

Notwithstanding the fact that the bill of exceptions fails to contain the insurance policy known as exhibit “B,” we have made a careful examination, of the evidence and believe that on the whole case substantial justice was done to the parties, and finding no prejudicial error, the judgment of the common pleas court will be affirmed.

Chittenden and Kinkade, JJ., concur.


author: CHITTENDEN, J.

text:
    RAILWAYS.
    [Wood (6th) Court of Appeals,
    May 8, 1913.]
    Richards, Chittenden and Kinkade, JJ.
    Hanover Ins. Co. et al. v. Cincinnati, H & D. Ry.
    Imperative to Show That Building Was Fired by Passing Locomotive. .
    In an action against a railway company for loss of property by fire, alleged to have been started on land adjoining the right-of-way by sparks from a passing locomotive, in order to establish.a prima facie ease of negligence under the act of April 26, 1894, 91 O. L. 187, it must be shown by affirmative evidence that the fire was caused by sparks from a locomotive which was being operated on the defendant company’s road, and this evidence must be sufficiently convincing to warrant the jury in finding that the fire was so caused.
    [Syllabus by the court.]
    Error.

      Benj. F. James, for plaintiffs in error.

      N. R. Harrington, for defendant in error.
   CHITTENDEN, J.

This action was begun in the common pleas court to recover damages alleged to have been sustained by the burning of a building belonging to one of the plaintiffs, F. M. G. Seibert, and which building was alleged to have been fired by sparks emitted by an engine of the defendant company while passing along the property of said plaintiff adjacent to the right-of-way of the defendant company. The fire is alleged to have occurred on or about April 25, 1909. The defendant claims not to have caused the fire, and further that its engines were equipped with the most effectual device for preventing the escape of fire and sparks therefrom. There were joined in this action as plaintiffs two insurance companies wbo had paid to the plaintiff Seibert the amount of insurance carried by their respective companies. The plaintiff Seibert claims a loss in excess of his insurance indemnity;

Upon trial of the action the jury returned a verdict in favor of the defendant. A motion for a new trial filed by the plaintiffs was overruled and judgment entered upon the verdict. This proceeding is to secure a reversal of such judgment.

The principal errors complained of are that the verdict and judgment are against the weight of the evidence, and that the .court erred in.its charge to the jury, especially in giving the written charges requested by defendant before argument.

In order that the plaintiffs might recover in this action it was incumbent upon them to prove that the fire was caused in whole or in part by sparks from an engine upon or passing over or along the railroad while the defendant was operating it. Such proof when made, establishes a prima facie case of negligence upon the part of the defendant, but such prima facie case is only made by the proof of such fact by affirmative evidence that would justify the jury in finding that the fire was so caused.

The Supreme Court of Ohio in Cleveland T. & V. Ry. v. Marsh, 63 Ohio St. 236 [58 N. E. 821; 52 L. R. A. 142], holds:

“To establish negligence there should be either direct proof of the facts constituting such negligence or proof of facts from which negligence may be reasonably presumed. There should be no guessing by either court or jury.”

A careful examination Of the evidence as disclosed by the record in this case shows that the jury would be entirely justified in finding that the plaintiffs did fail to prove by a preponderance of the evidence that the fire was caused by sparks escaping from a passing locomotive.. In fact we are of the opinion that the evidence would not justify any other finding upon this issue of fact.

The plaintiffs having failed in the proof in this essential fact, we find no error in the record prejudicial to the plaintiffs, and the judgment of the common pleas court is affirmed.

Richards and Kihkade, JJ., concur.


author: JONES (O. B.), J.

text:
    MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Court of Appeals,
    April 12, 1915.]
    Jones, Jones and Gorman, JJ.
    Louisa F. B. Livingston v. Cincinnati (City).
    Order to Tear Up Brick Sidewalk and Replace With Cement Unreasonable and May Be Enjoined.
    Where a brick sidewalk constructed at the cost of the property owner in conformity with specifications of the city is in good condition and fully answers the demands of public travel it is an abuse of discretion on the part of council to require that it be taken up and a cement sidewalk laid in its place.
    Appeal.

      Pogue, Hoffheimer & Pogue, for plaintiff.

      Walter M. Schoenle and Saul Zielonha, for defendant.
   JONES (O. B.), J.

The council of a municipality is vested with the discretionary power to determine and provide for the improvement and repair of sidewalks (Secs. 3582 to 3870 G. C.). Courts have no supervisory control and will not interfere with the action of council in its determination as to such improvement and repairs, unless a manifest abuse of its discretion is shown.

In this case it appears from the evidence that plaintiff now has in front of her property fronting 155 feet on West Sixth street a brick sidewalk which was constructed at her expense and conforms to the specifications of the city for such sidewalks, and is now in -good condition except in some minor particulars which can be repaired at slight cost, and that said sidewalk now corresponds with brick sidewalks laid in that portion of the city, and with slight repairs will fully answer all requirements for some time to come. The city council by sidewalk resolution No. 2723 has provided that sidewalks be constructed “by paving' with cement full width and repairing when necessary in accordance with the specifications therefor on file in the office of the department of public service.” The specifications in the above resolution were not introduced in evidence, but this resolution which is not explicit as between construction and repairs, has been construed by the parties as. requiring the present brick sidewalk to be torn up and in its place a new cement sidewalk to be constructed on the entire front of plaintiff’s property.

There is no question but that a cement sidewalk is generally regarded as much better than brick, but when as in this ease, the brick sidewalk is in good condition, fully answering all the demands of public travel, it would be an abuse of discretion to require the destruction of plaintiff’s brick sidewalk and the construction of a cement walk in its place. Plaintiff should-be permitted to repair the brick sidewalk in the minor particulars shown necessary by the evidence, and the construction of the cement sidewalk will be enjoined.

Jones (E. H.), and Gorman, JJ., concur.


author: GORMAN, J.

text:
    ANIMALS — DAMAGES—ERROR.
    [Hamilton (1st) Court of Appeals,
    April 19, 1915.]
    Jones, Jones and Gorman, JJ.
    Mehmert v. Kelso.
    1. Five Hundred Dollars for Dog Bite not Excessive.
    A verdict of $600 for a dog bite will not be reversed where- the injuries were severe, the plaintiff was confined to her house for six weeks and was in a highly nervous condition therefrom at the time of trial.
    2. Owner or Harborer of Dog Biting Liable for Injuries Regardless of Vicious Character of Dog.
    The common law rule that “every dog is entitled to one bite,” has no application since the enactment of Sec. 5838 G. C., it is sufficient in an action for damages for dog bite that defendant is the owner or harborer of the dog, that plaintiff was bitten by it,, regardless of the viciousness or fierceness of the dog.
    Error.

      Cramer & Headley, for plaintiff in error.

      Harry Hess, for defendant in error.
   GORMAN, J.

The action below in the superior court of Cincinnati was brought by defendant in error. Martha Eelso, to recover damages resulting from a dog-bite.

Plaintiff below averred that she had been severely bitten by a large dog harbored and kept by defendant, Joseph .Mehmert; that said dog was fierce and dangerous and accustomed to bite mankind, all of which was well known to defendant; and that the dog 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 plaintiff in the sum of $500. A special verdict or finding was also returned by the jury at the request of defendant, 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 Mrs. 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 cr 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 vieiousness or fierceness of the dog the defendant was liable in law for the injuries sustained by plaintiff. Section 5838 G. C.

The common-law rule, sometimes tersely put that “every dog is entitled to one bite, ’ ’ has no application now when there is a remedy afforded 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, and Gries v. Zeck, 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 a 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 to 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, in that it asks the court to tell the jury that unless the defendant acted toward 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 ease by the defendant, and that substantial justice has,, been done. Judgment affirmed.

Jones (E. H.), and Jones (O. B.), JJ., concur.


text:
    COUNTIES — HIGHWAYS.
    [Hamilton (1st) Court of Appeals,
    February 13, 1915.]
    Jones, Jones and Gorman, JJ.
    Josephine Whitney v. Bernard Niehaus and Hamilton Co. (Comrs.).
    1. Liability of County Commissioners for Lack of Proper Repair of County Roads Not Limited to improved Roads.
    Tbe liability of county commissioners in their official capacity, for damages resulting from negligence or carelessness in keeping roads under their jurisdiction in such a degree of repair as to render them reasonably safe for travel for which provision is made by Sec. 2804 G. C., is not limited to improved roads, but includes any public, state or county road or bridge.
    2. Negligence In Improvement of Repair of Road Averred Sufficient.
    While notice of a defect in a public road must be averred when due to the wearing away of the surface and not directly caused by any act of the public authorities, yet an allegation of notice is not necessary if the defect be one in the original plan or in the construction of the work; hence, a negligent act in the improvement or repair of a road which has resulted in injury being averred, the petition is good against demurrer.
    3. Averment That Trench Dug in Road Limits Saves Averment of Defect in Traveled Portion.
    Failure to allege that the defect complained of was in the improved or traveled way does not render a petition in an action for damages open to demurrer, when it is averred that-a trench had been dug along side of the road within its limits and, at the point of intersection with another road, across its face.
    4. Rule of Respondeat Superior Applies to Inherently Dangerous Construction of Road.
    When the work being done in the improvement or repair of a county road is inherently dangerous, the county commissioners can not shift the responsibility for negligence upon the contractor, but the rule of respondeat superior applies.

      Robertson & Buck-waiter, for plaintiff in error.

      John V. Campbell and Charles Groom, Pros. Attys., for defendant in error.
   GORMAN, J.

This is a proceeding in error to reverse the judgment of the court of common pleas in sustaining a demurrer of the defendants. the commissioners of Hamilton county, to an amended petition of plaintiff, and dismissing said defendants at tbe plaintiff’s costs.

Briefly stated, tbe plaintiff’s petition and amended petition counted on negligence of tbe defendants as joint tort feasors, whereby sbe suffered grave personal injuries while driving a horse and buggy along the Lawreneeburg and Harrison road in Whitewater township, Hamilton county. After setting out the official capacity of the commissioners, and that said road was at the time of the happening of the events related a county road in Hamilton county and within the jurisdiction and under the control of said commissioners, plaintiff further states that the defendants (that means the commissioners and Niehaus) were on and prior to March 17, 1912, repairing and improving said county road by grading, draining and placing macadam, rock and other material thereon, at a point where the Whitney road, a township road, intersects said county road; that the defendants by their agents and employes negligently, wrongfully and unlawfully caused to be. dug a ditch about six feet wide and two feet deep within the limits of said county road at its said intersection with and across the face of said township road; that said defendants in disregard of their duty negligently and wrongfuly permitted said ditch to remain open, unguarded, unprotected and unlighted during the night of March 17, 1912, by reason whereof said defendants negligently and wrongfully permitted said county road at said place to be in bad repair, unfit and unsafe and inherently dangerous for use in public travel. Plaintiff further avers that she was riding in a buggy drawn by a horse driven by her husband along said county road on said night, and while turning to the right to enter upon said township road the said buggy fell into said ditch on said county road, thereby throwing her violently out of the buggy and injuring her severely about her body. She prays for damages in the sum of .$5,000.

A demurrer was interposed below to this amended petition by the defendants, the commissioners of Hamilton county, on the ground that the averments thereof did not state a cause of action against the demurring defendants.

The demurrer was sustained, and the plaintiff not desiring to plead further as to the defendant commissoners, they were therefore dismissed with their costs.-

The case is now in this court on error, and the plaintiff in error asks for a reversal of said judgment, on the ground that the demurrer should have been overruled and not sustained. At the outset it is claimed by the prosecuting attorneys, who officially represent the commissioners, and conceded by counsel for plaintiff in error, that the commissioners are not liable for these injuries of plaintiff, however negligent they may have been unless there is a liability imposed by statute.

Section 2408 G. C. does impose a liability on the commissioners of a county in their official capacity for damages received by reason of their negligence or carelessness in not keeping any public, state or county road or bridge in proper repair. This law was enacted in 1894, prior to which time no liability attached to the board of commissioners for any injuries or damages sustained by reason of its neglect to keep the highways or bridges under its control in proper repair. No right of action at common law could be maintained for such negligence, and the liability being statutory the statute must be strictly construed in favor, of the county officials.

Now it is contended by counsel for defendants in error that the amended petition of plaintiff is fatally defective and open'to demurrer, because of the failure to aver first that the county road in question was an improved road; secondly, that the board of commissioners had notice of the defective condition, either actual or constructive; thirdly, that it fails to aver that the ditch or trench complained of was in the traveled portion of the roadway; and, fourthly, that the doctrine of respondeat superior does not apply to negligent acts of an independent contractor performing work on the public roads under contract with the county commissioners, and that although the amended petition fails to aver that the defendant Niehaus was acting as an independent contractor, nevertheless the court must take judicial notice of the fact that, under the statutes, the commissioners had no power or authority to make improvements or repairs of a county road except by letting the work to an independent contractor, and therefore Niehaus must have been employed as an independent contractor for whose acts of negligence in the prosecution of tbe work the commissioners are not responsible, assuming that he was negligent and that his negligence was the proximate cause of plaintiff’s injuries.

In view of the fact that this proceeding is one to review the action of the court below, we have considered the claims of counsel as though presented in the order made on the arguments on the demurrer in the court of common pleas.

As to the first contention of counsel for the commissioners, the court believe it is sufficiently answered by calling attention to the language of the statute, Sec. 2408, which imposes a liability on the commissioners in their official capacity for damages received by reason of their negligence or carelessness in not keeping in proper repair any public, state or county road or bridge. The liability is not limited to damages arising from failure to keep in repair improved county roads only; and therefore no averment that the road was an improved county road was essential. Furthermore, the question of whether or not this Lawreneeburg and Harrison road was an improved or unimproved road is one that could be determined by the proof, and if the board of commissioners are liable for damages on improved roads only, then the question might again be raised on the trial under the evidence; or the commissioners may plead by answer that the road was an unimproved one for the repair of which no duty rested upon them. It is averred that the. defendants were, at the time of the injuries sustained by plaintiff, engaged in improving and repairing said road, and this together with the averment that it was a county road under the jurisdiction and control of the commissioners, together with the language of See. 2408 G. C. appears to us to be sufficient to make the amended petition proof against the demurrer as to this point urged.

As to the absence of an averment of notice actual or constructive, to the commissioners, of the existence of the ditch, it is true that for an ordinary defect in the highway caused by the wearing away of the surface and not caused by an act of commission of the public authorities, notice of the existence of the defect must be averred, or allegations must be set out showing tbe length of time tbe defect has existed so that constructive notice may be inferred; but where the defect is in the original plan of the work or in the construction by the public authorities, no notice need be averred, as the public authorities are, in such cases, the original wrong-doers. See Alliance v. Campbell, 6 Circ. Dec. 762 (17 R. 595), affirmed without report, 53 Ohio St. 650; Groveport v. Bradfield, 1 Circ. Dec. 411 (2 R. 145); Boone Co. (Comrs.) v. Mutchler, 137 Ind. 140 [36 N. E. 534]; Raasch v. Dodge County, 43 Neb. 508 [61 N. W. 725].

The amended petition, and the petition, aver in the case at bar that the defect in this road was caused by the negligent act of commission of the commissioners in the original construction of this work of improvement and repair. 1

The, third claim of counsel for defendant is that the amended petition fails to state that the alleged defect, the ditch or trench, was in the traveled portion of the roadway and that inasmuch as no liability attaches to the commissioners for defects outside of the traveled way, the amended petition fails to show a case of actionable negligence.

It is true that our courts have held in several cases that the board of commissioners are not liable for injuries to persons or property caused by defects in the county or public roads outside of the improved or traveled way; but in the case at bar it is averred that this ditch or drain was dug along the side of the county road within its limits and at a point where the "Whitney road intersects it, and across the face of the said Whitney road. Now the public traveling along the Whitney road had a right to enter this county road at the terminus of the township road, and if a ditch or pitfall was constructed across the terminus of this township road at the place where it intersects the county road, it would appear to be- in a portion of the traveled way of this Lawrenceburg and Harrison road; it was apparently on that portion of the traveled way of said road which had to be passed over by those who entered or passed off the Whitney road; it was not at a place where no one would ordinarily have occasion to drive off to the side of the road, and therefore we believe that the amended petition in this regard shows that the defect was in the traveled way of this road.

As to the claim that the rule of respondeat superior does not apply to the county commissioners, it may be said that neither the amended petition nor the petition disclose that this ditch or trench was dug by an independent contractor, but so far as the averments of the pleadings disclose, the work was being prosecuted by the commissioners. It was held by this court in the ease of Clermont Co. (Comrs.) v. Judd, on error to the common pleas court of Clermont county, that the board of county commissioners are liable in their official capacity for damages resulting from their negligence in failing to keep a county road in proper and sufficient condition for reasonably safe use by the public, and if obstructions are carelessly or negligently placed thereon either by the county commissioners, their agents or employees, thereby blocking or obstructing the traveled portion thereof, it would be a failure to perform their duty to keep the road in repair, and would render the county commissioners liable for the injurious consequences resulting from such failure of duty. In this case the commissioners of Clermont county were repairing a portion of the Ohio Turnpike and for that purpose had deposited along the traveled portion of said road a pile of screenings which caused an obstruction in the road and into which the plaintiff Mabel Judd ran while driving a horse and buggy along the road in the night time, there being no barriers, lights or safeguards to warn her of the obstruction. She recovered for injuries sustained by this accident, and the judgment was affirmed by this court, and by the Supreme Court without report. Unfortunately the opinion of the court of appeals of Clermont county was not published, but it is agreed by counsel in this ease, and was likewise admitted by eounsel'in the Judd case, that a portion of this opinion is correctly set out in the brief of counsel for Mabel Judd in case No. 13935, Supreme Court of Ohio, a copy of which has been submitted to us by counsel in the case at bar- We are unable to see any distinction between an obstruction consisting of a pile of screenings in the roadway and a ditch or trench dug in a part of the traveled way. and believe that the rule laid down in the Judd case is derisive of the point raised by counsel for the commissioners in this case as to the rule of respondeat superior. Furthermore it is a sound rule of law that where the work done.is inherently dangerous, as it is alleged in this ease it was, the owner can not relieve himself from liability by committing the work to an independent contractor. See Covington & Cin. Bridge Co. v. Steinbrock, 61 Ohio St. 215 [55 N. E. 618; 76 Am. St. 375].

The court is of the opinion, that the ruling of the common pleas court in sustaining the demurrer to the amended petition was erroneous, and the judgment dismissing the defendants, the board of county commissioners of Hamilton county, is prejudicial to the plaintiff in error, and said judgment is hereby reversed.

It is but fair to the judge who passed upon the demurrer to the amendede petition to say that, after his decision, his' attention was called to the ease of Clermont Co. (Comrs.) v. Judd, supra, which was affirmed, no op., by the Supreme Court, Clermont Co. (Comrs.) v. Judd, 88 Ohio St. 601, and after that case was called to his attention a motion was interposed for a rehearing of the case and to set aside the entry sustaining the demurrer. In the opinion written by the trial judge below he stated among other things that in his opinion which he had previously rendered in this case (sustaining the demurrer to the amended petition) the construction he had given to the statute, Sec. 2408, was seemingly narrow, but that he thought he was following the rule laid down by the Supreme Court in the case of Ebert v. Pickaway Co. (Comrs.) 75 Ohio St. 474 [80 N. E. 5], but that it now seemed to him that the Supreme Court did not intend by the language it used in said case, at page 480, to hold that the county commissioners shall not be liable for negligence and carelessness in the act of repairing the county road. The trial judge further said that it was his opinion that justice to the plaintiff required, in view of the fact that the petition is based upon an alleged negligence of the county commissioners while engaged in repairing the county road, that the entry sustaining the demurrer should be set aside and that the demurrer, upon a rehearing, should be overruled.

Unfortunately for the plaintiff in error in this ease this conclusion was reached by the trial judge after the expiration of the term at which the entry was put upon the record sustaining the demurrer to the amended petition, and inasmuch as the trial court had no power or jurisdiction to set aside a former judgment or entry made at a previous term, he was unable to give force and- effect to this last conclusion upon the demurrer to the amended petition.

For the reasons stated herein, the judgment of the common pleas court will be reversed and the cause remanded for such proceedings as are authorized by law.

Jones (E. H.), and Jones (O. B.), JJ., concur.


text:
    CONTRACTS — EQUITY.
    [Hamilton (1st) Court of Appeals,
    February 7, 1916.]
    Jones, Jones and Gorman, JJ.
    *Margaret J. Dennedy and Michael Dennedy v. St. Theresa's Home for the Aged et al.
    1. Payment for Maintenance for Life in a Home for the Aged En-forcible.
    Courts will treat as a binding contract an agreement whereby a home and maintenance for life are promised by a home for the aged to one who has paid a specific sum in consideration for such promise.
    2. Hardships Resulting from Expelling Aged Woman from Home in Breach of Contract for Maintenance.
    Where an inmate of an institution under a contract for maintenance is expelled therefrom, free latitude in showing resulting hardship and damage together with the nature thereof shall not be refused.
    3. irregularities in Order of Expulsion Provable.
    To deny to an inmate who has been expelled the privilege of showing any irregularity or defect in the proceedings leading to the order of expulsion, including the nature of the charges, the hearing thereon, and all things connected with the order of expulsion is erroneous.
    [Syllabus approved by the court.]
    Error.

      J. M. Dawson, for plaintiffs in error.

      E. 8. Morrissey, L. F. Batterman and M. F. Boebling, for defendants in error.,
   JONES (E. H.), J.

There is a petition in error in this case asking a reversal of the judgment of the superior court dismissing the petition below. The petition was by Margaret Dennedy and her brother, Michael Dennedy, who sought an injunction against the St. Theresa’s Home for the Aged restraining it from ejecting the plaintiff, Miss Dennedy, from the home.

Miss Dennedy is seventy-three years of age. Her brother, Michael Dennedy, in 1911 paid to the St. Theresa’s home the sum of $500 on condition that his sister be provided a home and maintenance for life. Miss Dennedy’s occupancy may have been probationary at first; but she has been there continuously and the record shows to this court’s satisfaction that the contract became absolute and binding on the home not later than March, 1912.

The petition herein contains the necessary averments for injunction. It is not denied that action had been taken by those in charge of the institution to eject this old lady and that efforts were being made and steps being taken to make her leave. But it is claimed by way of defense that charges had been preferred, heard by the governing board and by it sustained, and that the order of ejectment was based thereon.

As has been said, the rights of plaintiff are founded on contract, and in such respect differ from those of members of social, benevolent or religious organizations. Under her contract Miss Dennedy has acquired rights which courts of law must recognize and take cognizance of. But whether she must resort to a court of law for damages or can obtain relief from a court of equity iii a question dependent upon the nature of her damage — as to whether or not it can be measured in money, and whether the law court can afford her adequate relief. See Mulroy v. Knights of Honor, 28 Mo. App. 463.

"We call attention also, in this connection, to the case of Parliament of the Prudent Patricians of Pompeii v. Marr, 20 App. Cas. D. C. 364. Paragraph 6 of tlie syllabus is this:

“Although, as a rule, the courts will not interfere to determine a person’s ‘good standing’ in a fraternal or other association, when such good standing is based upon morals, religion, etc., yet when it appears that the governing body of a beneficial association has ref usad to pay a member's policy of insurance on tbe ground that the member was not in good standing and that such good standing was based merely upon the payment of dues and that such dues had been paid, the courts will not hesitate to take cognizance of the matter.”

We quote from the opinion in this case the following pertinent paragraphs:

Pages 374-5: “Even if it could be held that in an incorporated association, such as the appellant is, a by-law could be sustained which would prohibit recourse to the ordinary tribunals of law, in regard to which we entertain very grave doubt ; and even if in a voluntary, and especially, a religious organization, by-laws and regulations for the discouragement of litigation have been upheld, yet most undoubtedly, in order to preclude one from resorting to the ordinary tribunals of the land for the enforcement of purely civil contracts, there must be some express and specific agreement shown for the substitution of some other inode of settlement. No such agreement is shown here; there is no mode pointed out by the pleas for the settlement of claims like that of the appellee ‘in the regular channels of the order. ’ It is not shown that the appellees or George • Marr, agreed not to have recourse to the courts in cases like the present. He who would oust the courts of the land of their ordinary jurisdiction, must show with specific distinctness what substitute therefor has been established; and it is not shown by the pleas in the present case that any officer or tribunal has been established to pass upon this class of claims. ’ ’

Pages 375-6: “Courts of law, it is true, will not ordinarily concern themselves with tbe question of the good standing of members of social, benevolent and religious organizations. Matters of morals, or religion, or dogma, or discipline, or gentlemanly conduct, must be left to these organizations to be settled as best they can in their own way. But good standing, with reference merely to a civil contract, and which depends on the payment of dues to the organization, is a thing of which the civil courts will not hesitate to take cognizance. ’ ’

In further support of the principle involved here and upon which plaintiffs rely for equitable relief, we quote from High on Injunction:

Section 30: “ The mere existence of a remedy at law is not in itself sufficient ground for refusing relief in equity by injunction. Nor does tbe existence or non-existence of a remedy at law afford a test as to the right to relief in equity. To deprive a plaintiff of the aid of equity by injunction, it must also appear that the remedy at law is plain and adequate; in other words, that it is as practical and efficient to secure the ends of justice and its proper and prompt administration as is the remedy in equity. And unless this is shown a court of equity may lend its extraordinary aid by injunction, notwithstanding the existence of a remedy at law. ’ ’

Sec. 22: “By irreparable injury is not meant that the injury is beyond the possibility of repair by money compensation, but it must be of such a nature that no fair and reasonable redress may be had in a court of law, and that to refuse the injunction would be a denial of justice.”

And Joyce, in his work on the same subject, says, Sec. 36:

“The injury is irreparable when it is of such a nature that the injured person can not be adequately compensated therefor in damages, or when the damages which may result therefrom can not be measured by any certain pecuniary standard.”

This action is based on contract, as we have heretofore remarked, and as the petition plainly shows. The situation of plaintiff is different, therefore, from one who is a member of a benefit society, and her right to apply to a court for relief much more firmly established and generally recognized. Yet cases are cited and eminent authors quoted in the brief of counsel for plaintiffs in error showing that even members of such organizations have been given relief in equity where they could show that the threatened damage was irreparable and incapable of settlement upon a pecuniary basis.

Plaintiff was therefore entitled to show her inability to obtain adequate relief in a court of law. We can well imagine from the circumstances shown in the record the difficulty and lack of opportunity to procure a contract such as that held by plaintiffs. Such institutions are few in number. She may not have the money with which to again buy a home for life, and even if she could get the money she would be compelled to leave behind friendships and associations for which no substitute could be found in the new home.

In this case the trial court should have gone fully into such an inquiry and should have allowed great latitude to plaintiff in her attempt to show any hardship or damage and the nature and extent thereof which may be worked by her 'expulsion. In such manner only can the court determine her right to the relief prayed for.

The plaintiff was also entitled to show, if she could, any irregularity or defect in the proceedings leading to the order of expulsion. This would include, the nature of the charges, the hearing thereon, and all things connected with the action of the board in expelling her. In denying these things to plaintiff in the trial below, we are of the opinion that the court erred to her prejudice.

The portion of the record where the errors occur is pages 66, 67 and 68, and we quote only a part:

On page 66: “ Q. Now, in the ease of charges that are preferred by the matron, that a party did not show her the proper respect—

“The Court: Gentlemen, we can not possibly go into all those details.
“Whereupon counsel for plaintiff offered to prove by letters and papers in this case that no material or substantial charges were ever preferred against the plaintiff, Margaret Dennedy, before the board controlling the St. Theresa’s Home.
“Whereupon said tender of proof was rejected by the court, to which ruling of the court, plaintiff, by their counsel, at the time, excepted.”

Page 67: “Mr. Dawson: I also offer to prove that the plaintiff in this case, Margaret Dennedy, made a demand, after being notified that a trial before this board was to be had, requesting a copy of the charges to met by her, and that this demand was refused.

“Whereupon said tender of proof was rejected by the court, to which ruling of the court, plaintiffs, by their counsel, at the time, executed.
“Mr. Dawson: I also offer to prove by documents in the matter, that this plaintiff made a demand for the names of the witnesses and that this demand was refused.
“Whereupon said tender of proof was rejected by the court, to which ruling of the court, plaintiffs, by their counsel, at the time,' excepted.
“Mr. Dawson: I also offer to show by the papers in the ease, that this plaintiff, Margaret Dennedy, demanded the right to be present with counsel at the inquiry’ into these matters concerning her right to remain in the home, and that she was refused the right to appear with her counsel or to have the. assistance of counsel in meeting the charges made.”

Page 68: “Whereupon the court rejected said tender of' proof, to which ruling of the court, plaintiffs, by their counsel, at the time, excepted. Copies of said demand are hereto attached marked Exhibits Ií, I and J and made part hereof.

“Mr. Dawson: I also offer to show that the plaintiff in this case, Margaret Dennedy, has conducted hereself strictly in accordance with all rules and regulations, constitution and bylaws, and that the expulsion or pretended expulsion of her by the Saint Theresa’s Home for the Aged, and its officers and directors, has been without any cause or excuse.
“Whereupon the court rejected said tender of proof, to-■which ruling of the court, plaintiffs, by their counsel, at the time,'excepted.”

For error in rejecting this evidence the judgment is reversed, and the cause remanded for new trial.

Jones (O. B.), and Gorman, JJ., concur.


author: EERNEDING, J.

text:
    CARRIERS.
    [Stark (5th) Court of Appeals,
    1916.]
    Powell, Houck and Ferneding, JJ. Judge Ferneding of the second district sitting in place of Judge Shields.
    Jane Sinnock, Admx. v. Pennsylvania Co.
    Degree of Care Due an Intending Passenger by Carrier Question for Jury.
    The question whether an intending passenger, who is in and about the depot awaiting the arrival of the train he desires to take, is a passenger and therefore entitled to the highest degree of care, is one which should he submitted to the jury under proper instructions; hence, to charge the jury that one injured under such circumstances was a passenger at the time of his injury constitutes prejudicial error.
   EERNEDING, J.

A careful examination of the errors complained of in this case leads to the conclusion that the trial court in its charge to the jury omitted to distinguish between the degree of care a railroad company owes to an intending passenger iñ and about its station awaiting the arrival of a train, and a passenger actually aboard one of the railroad company’s cars.

An intending passenger has to a greater or less extent control over his movements and can therefore exercise corresponding precautions to protect himself from danger. To this end. it becomes the duty of the common carrier to provide such station accommodations as are reasonably safe for persons exercising ordinary care.

When a passenger is actually aboard á train, he has substantially no control over his movements; he has, in effect, wholly surrendered himself to the care and control of the carrier, and the carrier must therefore exercise the highest degree of care to protect him, Cleveland, A. & C. Ry. v. Anderson, 11 Circ. Dec. 765 (21 R. 288). This court followed this rule in the former hearing of this case.

The trial court in the present hearing charged the jury as follows:

“If you should find from the evidence in this case that John Sinnoek went to the station that morning for the purpose of taking train 26 to Youngstown and was upon the depot platform and went there for that purpose, he was a passenger, and if he ivas a passenger he was entitled to that degree of care which the law imposes upon a railway company which is the common carrier of passengers, and that degree of care, gentlemen, is the highest degree of care. ’ ’ * * #

We are unable to escape the conclusion that such instruction was of such character as to prejudice the rights of the railroad company in imposing upon it a higher degree of care than was required.

Asa matter of fact, the evidence tends to prove Sinnoek was not a passenger upon any train. It is admitted he intended to board a train as a passenger, but whether he was or was not a passenger, we think was a question to be submitted to the jury under proper instructions. The court in effect announced in-his charge to the jury that he was a passenger, and therefore entitled to the highest degree of care, and this, we think, was error.

The judgment of the court of common pleas will therefore be reversed, and the cause remanded for a new trial.

Powell, J., concurs.

Houck, J., dissents.


text:
    APPEAL — RECEIVERS.
    [Cuyahoga (8th) Circuit Court,
    December 9, 1907.]
    Marvin, Winch and Henry, JJ.
    John L. Young v. Manhattan Beach Co.
    1. Receiver May Appeal Without Bond.
    A receiver may appeal a cause in which he is interested without giving an appeal bond. It is doubtful if a receiver needs leave of the court which appointed him, to appeal a case.
    [Syllabus by the court.]
    Error.

      J. H. Saltsman, for plaintiff in error.

      Herman Preusser, for defendant in error.
   "WINCH, J.

This ease is appealed into this court by the receiver appointed in the case by the common pleas court. Motion is made to dismiss the appeal, because no appeal bond was given, and because the receiver did not get leave to appeal the ease until thirty-one days after the entry of the order appealed from. We think neither objection well grounded.

Section 5227 E. S. (Sec. 12226 G. C.) provides that a party desiring to appeal his cause to the circuit court shall giye an appeal bond within thirty days after the judgment or order is entered on the journal of the court.

Section 5228 E. S. (See. 12227 G. C.), provides that:

“A party in any trust capacity, or a county treasurer in his official capacity, who has given bond in this state with sureties . according to law, shall not be required to give bond and security to perfect an appeal; and in such ease, the clerk of the common pleas court, at the expiration of thirty days from the entering of such judgment or order upon the journal of the court, if not otherwise directed, shall make a transcript, which together with the papers and pleadings filed in the case he shall transmit to the clerk of the circuit court as in other cases of appeal. ’ ’

We hold that a receiver appointed as this receiver was appointed, comes within the provision of this statute, being a party in a trust capacity, .qualified as therein provided, and may appeal any cause in which he is interested without giving bond, and the clerk not being otherwise directed within the thirty days, on the thirty-first day properly and according to law made a transcript and transmitted it with the other papers to» this court. Nor was the leave to appeal by the court which appointed the receiver granted too late. There was no reason for granting it until after the thirty days were up, for some other party might appeal and make such leave unnecessary. Again, in view of the statute referred to, it is doubtful if any leave is necessary for the appeal is perfected as of course, by the clerk, unless the court orders otherwise and here there was no-countermanding order.

Motion overruled.

Marvin and Henry, JJ., concur.