author: Houck. J.

text:
    LEGAL EVIDENCE INCLUDES EVERY KNOWN MEANS FOR ASCERTAINING THE TRUTH.
    Court of Appeals for Van Wert County.
    The Pennsylvania Company v. The Ireton Brothers Company.
    Decided, April 22, 1918.

      Weight of Evidence — Finding of Jury Will Not be Bet Aside — Where Reasonable Under All the Light Obtainable in the Case.

    W.liere the claim of plaintiff is reasonable under all the surrounding circumstances and the facts as developed -by proper evidence, and the judgment below is responsive thereto, and the loss must fall upon one of the parties to the case, the finding of the jury under proper instructions from the trial judge will not be disturbed by a reviewing court.

      Wheeler & Bentley and Clark Good, for plaintiff in error.

      Dailey & Hoke and H. L. Conn, contra.
   Houck. J.

(of the Fifth Appellate District, sitting in place of Hughes, J.).

Error to the court of common pleas.

The Pennsylvania Company operates, controls and manages a line of railroad running through the city of Van Wert, Ohio, from Chicago to Pittsburgh, with tracks, cars, locomotives and other appurtenances thereto belonging, and the defendant in error, the Ireton Brothers Company, owned a hay barn located on the north side of the right-of-way of the Pennsylvania 'Railway tracks, and on the east side of Walnut street, in the city of Van Wert, and about one o’clock p. m., of September 26th, 1916, the said hay barn, together with the contents, burned. Shortly before the fire was discovered, an engine and several ears owned and operated by plaintiff in error passed along and upon its tracks and by said barn.

Just prior to the time that said engine and cars passed said hay barn the engine had been standing still for nearly an hour, Employees of the defendant in error had been unloading and storing hay in said barn during the forenoon, and had worked in and.about the barn until about eleven or twelve o’clock noon of that day. When the fire was first discovered in the barn it was at the top, in the southeast comer. Shortly before this the locomotive in question passed said barn and was puffing very loudly and throwing out a large amount of black smoke and red cinders. The defendant in error filed its action in the Court of Common Pleas of Van Wert County,' Ohio, in which it asked fon a judgment in the sum of $1,622.95, with interest from the 26th day of September, 1916. The issues in the case were raised by the allegations in the petition of plaintiff and the answer of the defendant, which was in substance a general denial. Said cause was tried to a jury, which resulted in favor of the plaintiff below in the sum of $1,396.68, and the trial eourt entered judgment on the verdict.

A reversal of the judgment is sought in this court for two reasons:

First. That there was no legal evidence offered in support of the verdict and judgment.

Second. That the verdict of the jury was against the weight of the evidence. ■

As to the first claim of plaintiff in error, which in substance is that a demurrer to the evidence of plaintiff should have been sustained by the trial judge, we will say that we have read all of the evidence offered by the plaintiff and defendant, as embodied in the bill of exceptions, the same being necessary for the proper determination of the questions raised by counsel in the case.

Had plaintiff below, at the time it rested its case, made by the evidence thus offered a prima facie case, or established such facts as would entitle it to prevail, if not rebutted or disputed? In order to do so, it must have sustained by proper proof each and all of the material allegations of its petitionand this can only be determined from the proven facts as contained in the testimony offered in its behalf as found in the bill of exceptions.

It is urged that from these facts it was a physical impossibility for the locomotive in question to have caused the fire. This is based upon the conceded facts in the case, as to the location of the barn from the railroad track; the place where the engine stood prior to the fire; the rapidity with which it traveled past the barn, and its location where it stopped and w.as standing at the time the barn was discovered to be on fire.

Legal evidence is not confined to mere oral testimony and statements made by witnesses, but it includes every known means obtainable to ascertain the truth about any disputed question of fact. All the circumstances and surroundings must be taken into, consideration, and if when taken together they raise a mere suspicion as to the truthfulness of the claim made, the same is not sufficient. But in the ease now before us, where the 'facts and all the surrounding circumstances seem to point to 'the reasonableness of the claim of plaintiff below, we hold the rule to be that as between parties situated as the ones in the present case, where the loss must fall upon one or the other, it is just, legal and right, and the law casts it upon the one shown to have been the cause of the loss, if the proof establishes the reasonable probability of such fact.

If this rule is sound, and we feel that it is, then applying it to the present ease the judgment below must stand, unless we further find from all of the evidence in the case, that the verdict of the jury was against the weight of thé evidence. In the weighing of evidence it is not a mere question of mathematics, nor is it to be determined by mere conjecture, but depends upon its effect in inducing the jury or court to.reach a proper conclusion based wholly and entirely upon the adduced facts.

The question here for determination is as to whether or not the proof on the part of the plaintiff below is greater than that of the defendant, as shown by all of the evidence in the case as contained in the bill of exceptions. If it is, then the judgment should be affirmed; otherwise reversed. No complaint is made by counsel as to the law of the ease as charged by the trial judge, yet we have read it and find that it fully and completely covers every issue of fact and law in the ease. If a reviewing court was clothed with the same power as a jury in passing upon facts, and could see and hear the witnesses and observe their demeanor while upon the witness stand, instead of being compelled to rely upon their typewritten testimony alone, it would be a great aid in determining the question as to whether or not the evidence was properly weighed by the jury. The jury is not only the judge of the credibility of the witnesses, but of the weight of the evidence given by them, and a reviewing court is not authorized or justified in setting aside a verdict of a jury because it is claimed that it is .against the weight of the evidence, unless after a careful examination of the whole record in the ease it is clearly and fully satisfied that such verdict was manifestly against the weight of the evidence. The Supreme Court of our state has said, “Where there is no dispute or conflict in the testimony of different witnesses, but nevertheless the unconflieting testimony discloses a variety of circumstances from which different minds may reasonably arrive at different conclusions as to the ultimate fact shown by such evidence, then it is the duty of the jury to determine such ultimate fact.”

The ultimate fact as to whether or not the plaintiff in error was the cause of the mischief complained of in the -case at bar having been determined by the jury under proper evidence submitted to it, and under proper instructions as to the law by the trial judge, a reviewing court has no authority in law to disturb the verdict of the jury.

Counsel for plaintiff in error insist that the following rule of law be applied to this case:

“A scintilla of evidence is enough to send the case to the jury, but a preponderance of’the evidence constitutes the degree as to the weight to which the party on whom the burden of proof rests must have in order to have sufficient evidence to sustain the verdict, and preponderance is the test measure of the weight of the evidence. If it does not preponderate in favor of the party the weight is not with him. If it is evenly balanced, the weight is not with the party. If the evidence does not preponderate in favor of the party sustaining the burden, then and only then may it be said that the verdict in his favor is not sustained by sufficient evidence.”

We heartily agree with learned counsel that this proposition of law is sound, and that it is clearly applicable to the issues raised by the pleadings and the proven facts in the case now before us .under review, and that when so applied it is decisive of same, and that by reason thereof but one conclusion can be reached, and that is that the judgment below is responsive to the facts and law, and must be affirmed.

Judgment affirmed.

Kinder, J., and Crow, J., concur.


source: Caselaw Access Project

author: Allread, J.

license: Public Domain

text:
    VALIDITY OF STIPULATION IN A CONTRACT THAT ALL WORK SHALL BE DONE BY UNION MEN.
    Court of Appeals for Franklin County.
    Local Branch No. 248, National Decorators and Painters Association of America et al v. Benjamin C. Solt.
    Decided, March, 1918.

      Combinations of Workmen and Legitimate Means for Enforcing Their Demands — Owner May Contract that Work Shall be Performed by Union Labor Only — Union May Insist that Such Provision be Adhered to' — Non-Union Contractor, Shut Out by Such Stipulation, is Without Ground for Action Against the Union.

    1. Where the owner agrees to the exclusive employment of union labor in the construction of a proposed building and where union workmen acting and relying thereon have accepted employment the subsequent employment of a non-union workman for the execution of a branch of the work is a violation of the owner’s agreement and a mere threatened withdrawal by the union workman or by the union in their behalf, in the event that the non-union workman is not discharged, is not illegal.
    2. Where a non-union workman is .employed for the execution of a ■branch of the work under plans and specifications requiring the exclusive employment of union labor and is discharged by the owner in consequence of a threat of the union labor employed upon the building to strike if the non-union workman is not discharged, the non-union workman has no cause of action against the labor union where no malice is charged and where no violence or other unlawful means is threatened.

      F. S. Monnett, H. H. Felsman and Robert J. Beatty, for plaintiff in error.

      N. B. Collins, contra.
   Allread, J.

Solt, a master painter, obtained a contract from the Photo Play & Amusement Company, the owner and builder of the Majestic Theater, for the finishing and painting of the woodwork of the lobby and canopy or marquise for the sum of $270.

The building was constructed by different contractors under plans and specifications adopted by the owner.. These plants and specifications included notice to bidders containing the following clause:

“Union Labor — Each and every contract entered into under these specifications and accompanying plans shall be executed in every detail by union labor.”

Solt personally undertook to do most of the work embraced in his contract. Later he was assisted by a union painter procured by the superintendent of construction.

'Solt admits that he had not for several years held a union card, nor had he signed the union scale of wages.

It appears that at the time Solt obtained his contract the work upon the building was nearing completion and the time had been fixed and published for the opening of the theater. Work upon other contracts was being executed wholly by union labor. Complaint having been made to Local No. 248, one of the plaintiffs in error, an investigation was had and resulted in the appointment of a committee who called upon the representative of the owner and notified them that unless Solt was withdrawn the unions would declare him unfair and call off all union labor then at work upon the building.

Neither in the petition nor in the evidence does it appear that there was any threat of violence, of boycotting or of preventing the employment of other workmen to complete the building. The sum and substance of the demand and threat was merely the withdrawal of union labor from the work.

The case presents a somewhat unusual feature. Modern statutes and modern decisions we think, recognize the rightful place of labor unions as organizations in the advancement of the interest of the laboring classes and their rights and limitations have been frequently considered. The weight of authority upholds the right of a labor union, in the absence of an inconsistent contract, to advise and procure the withdrawal of union labor from a given work either singly or in combination, where no violence or other unlawful means are employed and where the object of the strike is not unlawful. Fulworth Garment Co. v. International Ladies’ Garment Workers Union, 15 N.P. (N.S.), 353; Kemp v. Division No. 241, 255 Ill., 213; Iron Moulders Union v. Allis-Chalmers Co., 166 Fed., 45; J. F. Parkmen Co. v. Builders Trades Council, 154 Col., 581; 16 Ruling Case Law, pp. 444-460.

A strike is defined as “the act of a party of workmen, employed by the same master, in stopping work altogether at a preconcerted time and refusing to continue until higher wages or shorter time or some other concession is granted to them by the employer.” (Black Law Dictionary.)

Bouviers defines a strike as “a combined effort of workmen to obtain higher wages or other concessions from their employers by stopping work at a preconcerted time.”

In Kemp v. Division No. 241, supra, it is said: ‘ ‘ The threat made by the committee that the members of the union would call a strike of the employees of the railway company unless their demands were complied with, meant no more than that the union employees would be notified to quit in a body at a defiidte time if the non-union employees were retained in the service.”

So here the threat of the committee of the locals to call ,a strike meant no more than that they would call off the union workmen from the building if their demands were not met 'by the employer.

This brings us to the legality of the purpose of the proposed strike.

The owner had voluntarily agreed to the exclusive employment of union labor in the execution of every detail. The consideration for this agreement is based upon the presumed advantage arising out of the employment of union labor. The contract ' was for the benefit of union labor. After the contract had been recognized and acted upon by union workmen the same 'became a valid obligation. The employer had obtained the benefit of the provision throughout the work of construction and up almost to the time of completion of the building.

The recent cases sustain the validity of contracts by the employer for the exclusive employment of union labor, particularly where the supply of union labor is adequate or where provision is made for the unionizing of workmen in ease of shortage. Nat’l Fireproofing Co. v. Masons’ Builders Assn., 169 Fed., 260; Jacobs v. Cohen, 183 N. Y., 207; Mills v. U. S. Printing Co., 99 App. Div. (N. Y.), 185; Hoban v. Dempsey, 217 Mass., 166; 16 Ruling Case Law, 426; Contra, Curran v. Galen, 152 N. Y., 83; Berry v. Donovan, 188 Mass., 353.

We are not required to express an opinion as to the natural and constitutional right of labor unions'to interfere between employer and other employees who are willing to .accept employment. In this case the employer agreed to employ union labor exclusively. There was no duress or unfair means used to secure the contract. The contract was voluntary and was by. implication a recognition of the right of the locals to act on behalf of and in the interest of union labor. The condition in the contract for the exclusive employment of union labor entered into and became a condition of employment in all branches of the building contract and the union workmen had the legal right to withdraw from the work at any time the condition was violated.

This was the situaton .as between the union labor employed on the building and the employer, and we think it clear that the locals and the committee acting on their behalf had the right when the condition of employment was violated, to order the withdrawal of union labor from the work.

There is a question raised as to whether Solt’s obtaining the contract and working upon the job was itself a violation of the employer’s contract with union labor.

'S'olt undertook personally to do most of the work contracted for, although he admits that he was not affiliated with any labor organization and had signed no union wage scale. Tie was of the opinion that his taking the contract was not a violation of the contract for the employment of union labor, and the owner and its agents were of the same opinion and acted in good faith, although we believe mistakenly.

Whatever might have been Solt’s right as contractor and as overseer or superintendent of the work,, we think under a fair construction of the .agreement as to union labor there was a violation of the contract when he undertook to do the work himself. The owner in contracting with union labor clearly contemplated that the work in every detail should be performed by union labor. This contract could not, in our judgment, be fulfilled by letting the work to one or more non-union contractors to personally perform the labor. •

Solt testified that he examined the portion of the specifications relating to painting before he took the contract. The specifications .as to painting referred to the notice to bidders which contained the provisions as to the exclusive employment of union labor.

While Solt testified that nothing was said in his verbal contract as to the employment of union labor, yet we think it sufficiently appears from his own testimony that he knew that union labor was required to be employed upon all features of the building.

Solt’s rights are, therefore, under all the evidence clearly subject to the condition as to the exclusive employment of union labor and his right would, therefore, rise no higher than that of his employer.

But even if Solt took his contract in ignorance of the condition expressed in the cwner’s contract as to union labor, then his right of action, if any, would be against the owner and not against the labor organization.

The plaintiffs in error having, therefore, acted within their legal rights, the threatened strike was not illegal and the discharge of Solt, so far as the plaintiffs in error were concerned, is damnan absque injuria. 16 Ruling Case Law, 460.

The fact that certain members of the locals obtained employment after the discharge of Solt does not change the legal status. There is no charge of malice and it was a natural and anticipated result that some of the union would be benefited by the performance of the union labor contract.

Plaintiffs in error moved at the close of the plaintiff’s evidence and also at the close of all the evidence for an instructed verdict in their favor.. The court overruled the motions and submitted the case to the jury which returned a verdict for $500. A judgment was rendered upon the verdict and error is prosecuted to this court.

"We have reached the conclusion that the motions of the plaintiffs in error for a directed verdict should have been sustained.

The judgment of the court of common pleas is therefore reversed and final judgment in favor of plaintiffs in error will be ordered.

Kunkle, J., and Ferneding, J., concur.


author: Houck, J.

text:
    AS TO THE TRUTH OR. FALSITY OF ANSWERS MADE BY AN APPLICANT FOR INSURANCE.
    Court of Appeals for Fairfield County.
    Sovereign Camp of the Woodmen of the World v. Mary Clelland.
    Decided, October 27, 1917.

      Mutual Benefit Societies — Answers of an Applicant for Membership Must be Considered as a Whole — Determination as to the Truth or Falsity of Such Answers is for the Jury.

    1. A beneficial association, ■ in resisting payment of a death claim, can not rely on part of the answers made by the decedent in his application for membership and .ignore his answers to other questions, but the answers must be taken as a whole in determining their truth or falsity.
    2. Whether or not the decedent answered falsely is a question for the jury, and it is not within the province of a reviewing court to set aside the verdict of the jury on such an issue upon the weight of the evidence unless the verdict is clearly and manifestly against the weight of the evidence.

      Ben R. Dolson, John V. Sees and Doud, Crawfis, Bradford & Dones, for plaintiff.

      B. E. Shell, contra.
   Houck, J.

The suit below was to recover on a beneficiary certificate issued on the life of Harry Clelland, now deceased, by the plaintiff in error, on the 14th day of July, 1914. The defendant in error was the beneficiary named in the certificate. Upon issue joined, as made by the petition, answer and reply, the cause was submitted to a jury in the court of common pleas upon the evidence .and charge of the court, and after due deliberation a verdict was returned for the plaintiff, Mary Clelland. A motion for a new trial was filed by the plaintiff in error, the defendant below, which the trial judge overruled, and entered a judgment on the verdict.

Error is here prosecuted seeking a reversal of the judgment below, and numerous grounds of alleged error are set out in the petition in error, but in oral argument counsel for plaintiff in error insisted upon but three: (a) That the court erred in not sustaining defendant’s motion, after all the evidence was offered, instructing the jury to return a verdict for the defendant; (b) that the trial court erred in its charge to the jury; (e) that the trial court erred in not sustaining the motion of defendant below for a new trial.

We will discuss the alleged errors together, and in doing so we will refer to the parties hereafter ,as they stood in the court below. An examination of the record discloses that the defendant admitted issuing a membership certificate to the deceased; his death; the' presentation of a claim for death benefit, by plaintiff, and the refusal to pay the claim. In its .answer the defendant sets up as an affirmative defense that .the deceased member had made false representations in his application for membership; had warranted these representations to be true, and had agreed to forfeit all rights under his membership should these representations be false. The reply of plaintiff in substance denied all of the material allegations of defense set forth in the answer of the defendant. The record further discloses that at the trial it w,as agreed by counsel in the case and concurred in by the court that the burden of proof was upon defendant, and thereupon defendant offered its evidence in the case, and to maintain the issues raised by the answer the defendant offered in support of the same the application of Harry Clelland, the benefit certificate, and the testimony of three physicians.

The real basis of the defense of defendant was that the member, Harry Clelland, in his application for membership made certain statements as to his health, and that the answers to the interrogatories concerning such health were made by him to Dr. C. G. Axline, the local camp physician and examiner, and that they were written down by said examiner, and after they were so written the said Harry Clelland signed the application; that the application contained a warranty that all of the answers to all of the questions were true, and an agreement that if any of said answers were untrue, the membership of applicant and .all rights under the certificate of membership, and the insurance thereunder should be null and void. Defendant insists that among other answers in the application were some to the effect that Harry Clelland did not at any time previous to his. application have any disease of the nervous system, nor any disease of the kidneys, nor any disease of dropsical swellings. It is urged by counsel for plaintiff in error that the evidence conclusively shows that the deceased had suffered with at least three diseases specifically mentioned in the application, a short time before signing the same; that in said application said Harry Clelland denied that he ever had any of these diseases, and that in said application he agreed to forfeit all rights against said beneficial society if any of the answers so made in his application were false or untrue.

It is maintained by counsel for defendant in error that this claim is untrue, and is not supported by the evidence submitted at the trial of the case. It is further urged by the defendant in error that the plaintiff in error is estopped from making the claim relied upon by it because Harry Clelland in his application had stated in answer to the question, “Diseases or injury?” the answer, “Breakdown from overwork, date 1910, duration one and one-half years.”

We are of the opinion that the claim made by the defendant in error in this respect is well taken, because it can not properly be contended that the beneficial association can rely upon part of the answers to questions contained in the application and ignore the answer or answers to certain other questions. The application must be taken as a whole, and from it must be determined whether or not any answer or answers to questions were fals„ely made, or at the time of making such answers the applicant knew they were false or not.

But passing this question, because we do not deem it decisive of the case at bar, and coming now to the true question involved in this controversy, namely, Did Harry Clelland make any misrepresentations in his application for membership? This was a question of fact to be determined by the jury under all the evidence in the ease and under proper instructions by the trial judge as to the law governing the established facts.

It is a well known rule of law that litigants in jury trials have the right to submit the evidence to the jury, the weight and sufficiency of such evidence to be passed upon by the jury. It therefore follows that it was within the province of the jury to determine the real question involved in this case, and it is not within the province of a reviewing court to set aside the verdict of a jury upon the weight of the evidence, unless it was manifestly so. Although a reviewing court might have rendered a different verdict than the jury did, if it had been sitting as a jury in the trial of the case under the same state of facts, yet it was for the jury to determine the facts and to weigh the evidence, and that being true, we can not say in the present case that it was improperly done.

Plaintiff in error maintains that the trial judge in his general charge committed errors of law. We have examined the charge with much care and we find that the ciaim of plaintiff in error in this respect is not -well taken. Learned counsel for plaintiff in error also insist that the motion for ,a new trial should have been sustained, and to this claim we do not agree. An examination of the record discloses that before argument of the case the plaintiff in error, the defendant below, requested the court to give certain propositions of law to the jury. These requests were made in writing and were given to the jury, and are as follows:

“First. If you find from the evidence that Harry Clelland ever had any disease of the liver before his application for membership in defendant, your verdict must be in favor of the defendant, whether he knew of such disease or not. •
“Second. If you find from the evidence that Harry Clelland ever ha„d any disease of the nervous system before his application for membership in defendant, your verdict must be in favor of defendant, whether he knew of such disease or not.
“Third. If you find from the evidence that Harry Clelland ever had any dropsy or dropsical swellings before his application for membership in defendant your verdict must be in favor of defendant, whether he knew of such condition or not.”

We have examined these propositions of law and find them sound and clearly applicable to the facts in the case at bar. In view of this we do not understand how plaintiff in error can now complain of the verdict in this ease, because the main issue to be determined in this controversy was whether or not the alleged statements made by Harry Clelland in his application were false or not, and the law, as given to the jury in these special requests before argument and which were given at the instance of plaintiff in error, fully and completely covered every phase of the case, so far as the vital question at issue wás involved. It therefore seems to us that no prejudicial error appears in the record in this case that would justify a reviewing court in reversing the judgment of the court below, and the judgment of the common pleas court is affirmed.

Powell, J., and Shields, J., concur.


author: Jones (Oliver B.), J.

text:
    RELIEF AGAINST SPECIAL ASSESSMENTS.
    Court of Appeals for Hamilton County.
    The Cincinnati Ice Co. et al v. City of Cincinnati et al.
    Decided, December 6, 1915.

      Assessments — Validity of, for Street Improvements — May Not he Enjoined hecause in Excess of Benefits — Degree of Proof Required— Market Value.

    A special assessment will not be enjoined on the ground that the benefits are not equal to the assessment unless it is clearly and convincingly shown, nor will the question of market value before and after the improvement alone be considered.

      Geo. J. Slaline and John J. Acomb, for plaintiffs.

      Walter M. Schoenle, City Solicitor, and Frank K. Bowman, Assistant City Solicitor, contra.
   Jones (Oliver B.), J.

This is an action to contest the validity of an assessment for the improvement of Livingston street, by paving with granite, heard on appeal Prom the court of insolvency.

While the petition contains allegations of irregularity in the proceedings of council, no attempt was made to support them by any evidence. The only evidence offered by plaintiffs was for the purpose of showing that the assessment was in excess of the benefits. Testimony was submitted by plaintiffs to show that the market value after the completion of the improvement was no greater than it had been before. Defendants, however, produced testimony showing that the market value of plaintiffs’ respective lots directly after the improvement exceeded their value immediately before the improvement by a sum largely in excess of the amount of the assessment.

The street had been improved by bowldering in 1867 and 1872. There had been no subsequent improvement until the one in question, and the pavement and curbs were out of repair and in bad condition. The evidence showed that the real estate in that locality had suffered a general deterioration in value. So, even if the evidence of plaintiffs were taken to the exclusion of that of defendants, it might still be possible that a considerable benefit had been conferred upon the abutting lots by this improvement, even though the market value had remained the same.

It is true that the foundation for the support of a special assessment is the special benefit conferred by the improvement, and that such assessment can in no case exceed such benefit. Chamberlain v. City of Cleveland, 34 Ohio St., 551; Walsh v. Barron, Treas., 61 Ohio St., 15, and Walsh v. Sims, Treas., 65 Ohio St., 211.

But an assessment will not be enjoined on the ground that the benefits are not equal to the assessment, unless it is clearly and convincingly shown. Nor will the question of market value before and after the improvement alone be considered. McMaken v. Hayes et al, 10 C.C.(N.S.), 38, and Prentice v. City of Toledo, 11 C.C.(N.S.), 299.

In this case the evidence fails to convince the court that the assessments are in any instance in excess of the benefits conferred by the improvement, and the petition will therefore be dismissed at plaintiffs’ costs.

Petition dismissed.

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


author: Pollock, J.

text:
    DETERMINATION AS TO WHETHER. A COVENANT RUNS WITH THE LAND.
    Court of Appeals for Harrison County.
    Ina J. Johnson v. The American Gas Company.
    Decided, November 28, 1917.

      Covenants Running With the Land — May he Created Without the Use of Particular Words — Consistency of the Bu/rden and an Intention to Impose It Are the Determining Factors — Basement for a Pipe Line in Consideration of Free Cas.

    1. The use of the word “assigns” or “heirs and assigns” are not necessary or essential to create a covenant running with the land, and in determining whether a covenant will run with the land the material inquiries are whether the parties intended to impose such burden on the land, and whether it is one that may be imposed consistently with principle and equity.
    2. Where the owner of farm lands grants to a compahy, its successors and assigns, -the right to lay and maintain a pipe line over said farm for the purpose of transporting gas, in consideration of one dollar and that said company will furnish gas free for one fire in the residence of said owner, and said company lays said pipe line, and it and its successors in title maintain the same, and furnishes free gas in said residence to the then owner, and continues to furnish such gas for a number of years .to his first and second successor in title, such covenant runs with the land, and the successor to said company will be required to furnish free gas to the successor or successors in title of said land according tO' the provisions of such contract, so long as the successor of said company continues to use such right-of-way to transport gas.

      W. B. Stevens, and Rowland & Pettay, for plaintiff.

      W. L. Handley, contra.
   Pollock, J.

In November of 1899, John McLandsborough entered into a contract in writing with the Scio Gas 'Company, by which he granted to said company a right-of-way for a pipe line to convey gas across his farm in North township, this county. Said contract reads as follows:

"Right-of-Way.
“John McLandsborough to the'Scio Gas Company.
“Agreement.
“Know all men that I, John McLandsborough, of the county of Harrison and state of Ohio, in consideration of the sum of one dollar to me in hand paid by the Scio Gas Company of Scio, Ohio, do hereby grant to the said the Scio Gas Company, its successors and assigns, the right to lay and maintain a pipe line for transporting gas across my farm in North township, said county, and described'as follows:
“Said line to be laid in a course and at a place on said farm to be agreed upon by the parties hereunto before the same is laid. The said the Scio Gas Company, its successors and assigns, shall have the right to enter the premises described herein at all times to repair and maintain said gas lines.
“It is further agreed that the Scio Gas Co. is to furnish free gas for one fire in the residence of said John McLandsborough, said John McLandsborough making his own connections with said gas line. „
“Also all damages to growing crops and to fence caused by laying and maintaining said gas line shall be paid for by the Scio Gas Company.
“It is further agreed that when the Scio Gas Co. shall procure more gas that they will furnish free gas for a second fire under the same conditions as above.
“Said gas line shall be buried if so required by John McLandsborough or assigns.”

This contract is signed by the parties, witnessed by two witnesses and .acknowledged before a notary public, and duly recorded as before stated.

In pursuance of the foregoing, said company soon thereafter laid its line for a considerable distance across said premises, and from which line the said John McLandsborough constructed a domestic line to his residence upon said premises and gas was furnished as in said contract provided. In 1904, John McLandsborough died and Seigel McLandsborough, a son, by will took title to said real estate, and said company continued to furnish gas through said domestic line to said residence. In 1911, the Seio Gas Company sold and assigned said “right-of-way” to the American Gas Company, which continued to furnish gas to said residence. On January 2, 1913, Seigel McLandsborough conveyed said premises to Ina J. McLandsborough, now Ina J. Johnson, the plaintiff herein, and said American Gas Company continued to furnish gas to said residence until the 26th day of May, 1917, when said company disconnected said domestic line and refused longer to furnish gas in said residence, although it and its predecessor had continuously used .said right-of-way since the date of said grant and is still using the same. Soon thereafter ,a petition was filed in the court of common pleas of this county, asking that a mandatory injunction issue requiring said company to again connect said domestic line with said main line and to furnish gas to said residence; to this petition an answer was filed alleging that said contract or “right-of-way” was merely personal in character between the original parties, and that the covenant as to free gas did not run ivith the land. To the answer a reply was filed denying the averments thereof, and so the issue was made up, trial had and a decree entered granting said mandatory injunction, from which an appeal was taken to this court. The only issue to be determined here is whether or not the agreement to furnish gas in said residence was a covenant running with the land, or merely personal, inuring to the benefit of John McLandsborough only. The subject of “covenants running with the land” has elicited a wide range of discussion in this and many other jurisdictions, and in these discussions it has been a subject of much concern whether a covenant concerning a thing not in esse will under any circumstances inure to the benefit of or bind the assignee, and, also, whether it was necessary to use the word “assigns” or “heirs and assigns” to make a covenant concerning a thing not in esse run with the land. One of the earliest discussions, and possibly the most notable, is found in Spencer’s Case, 5 Coke, 16, and probably no other has attracted more, if quite so much, attention. This was a series of seven resolutions passed by the judges concerning covenants, and which of them run with the land, and which were collateral, and where the assignee should be bound without naming him, and where not, and where he should not be bound though named, and where not. The first and second of said resolutions are of interest here. The first reads as follows:

“When the covenant extends to a thing in esse, parcel of the demise, the thing to be done by force of the covenant is quoddmnado annexed and appurtenant to the thing demised, and shall go with the land, and shall bind the assignee, although he be not bound by express words; but when the covenant extends to a thing which is not in being at the time of the demise made, it can not be appurtenant or annexed to a thing which hath no being. As if the lessee covenants to repair the houses demised to him during the term, that is parcel of the contract, and extends to the support of the thing demised, and is therefore quoddamado annexed and appurtenant to houses, and shall bind the assignee, although he be not bound expressly by covenant.”

In the instant case the covenant concerns a thing which was not in esse at the time of the demise made, but to be “newly built after ’ ’ and therefore would seemingly bind the covenantor and not the assignee, for “the law will not annex the covenant to a thing which hath no being; this, however, is the provision of said first resolution only. The second resolution reads as follows:

‘ ‘ It was resolved in this case that if the lessee had covenanted for him and his assigns that they would make a new wall upon some part of the thing demised, that, for as much as it is to be done upon the land demised, that it should bind the-assignee; for although the covenant doth extend to a thing to be newly made, yet it is to be made u¡>on the thing demised, and the assignee is to take the benefit of it, and therefore shall bind the assignee by express words.”

Recognizing the inconsistency in the above resolutions, the courts have been gradually abandoning the position that it was necessary to use the word “assigns” to make a covenant concerning a thing not in esse run with the land, and have been coming to regard the intention of the parties, as gathered from the whole instrument, the governing principle, and not the use or meaning of mere technical words. Moreover, it is exceedingly doubtful whether the court so decided in Spencer’s case.

In the English notes to said ease in 15 English Ruling Cases, 244, it is observed that anonymous ease in F. More, 159, 300, has been identified and approved as a report of the final determination of Spencer’s case. It is there stated that the court held that:

“Notwithstanding that the covenant lacks words (assigns), yet each by the acceptance of the possession has made himself subject to all covenants concerning the land, 'but not to collateral covenants, and covenants of reparation, etc., # ® are covenants inherent to the land with which the assignee, .without special words, shall be charged.”

The foregoing seems all the more likely to have been the court’s conclusion in view of the observations of Chief Baron Pollock, speaking for the Court of Exchequer in Minshall v. Oakes, 2 Hurlst & N., 793, where it is said:

“The explanation may be that Lord Coke is reporting a variety of arguments and opinions expressed, while More gives the ultimate decision.”

Attention is also directed to the fact that the resolutions were never acted on, and that according to Moore the decision was the other way in Smith v. Arnold, 3 Salk., 4.

Therefore, so far as Spencer’s case is concerned, and it is the notable one in iall early jurisprudence, it seems safe to say that the use of “assigns” as a technical word is not now nor never has been essential to the running of a covenant with the land at common law.

It is indeed difficult to reconcile the first and second resolutions in Spencer’s case, and the conclusion must be that many of the courts have practically repudiated the first by following the second; and that the word “assigns” is not necessary to make a covenant concerning a thing not in esse run with the land, and so it is held in Sexaner v. Wilson, 113 N. W., 941, the first paragraph of the syllabus of which reads as follows:

“The use of ‘assigns’ as a technical word has never been essential to the running of a covenant with the land at common law.”

The foregoing is in point with the instant ease and is somewhat similar as to facts. The covenant related to a division fence which was not shown by the testimony to be in existence at the time of the execution of the deed, and yet it was held that the word "assigns” was not necessary to create a covenant running with the land.

Again in the case Doty v. Railway Co., 53 S. W., 944, it is held that:

"A deed conveying a right-of-way for a railroad in consideration of five dollars and an agreement by the grantee to run daily passenger trains on and along the right-of-way, with provision that, if it is abandoned for non-user for six months, title shall revert to the grantor, contains a covenant running with the land as to the running of trains, though the road was not built when the deed was made, and the word ‘assignee’ is not used; so that a purchaser of the road is liable thereon for a breach subsequent to the purchase, though there had been breach of the covenant before the transfer. ’ ’

The foregoing is similar in principle with the case at bar and somewhat similar as to facts. And holding squarely to the same effect is Denman v. Prince et al, 40 Barbours, 213; Teachout v. Capital Lodge I. O. O. F., 104 N. W., 440; Norman v. Wells, 17 Wend., 149, 150, 153; Beddoe’s Ex’r v. Wadsworth, 21 Wend., 120; Bally v. Wells, 3 Wils., 25; and in Masury v. Southworth et al, 9 O. S., 341, it is held in the third paragraph of the syllabus as follows:

"3. When such a covenant to insure has for its object a building to be erected after the date of the lease, but which, when erected, is to be used by the lessee, and is an essential ingredient in the agreement of the parties for the creation of the estate, it is not indispensable to make such a covenant run with the land that ‘assignees’ should be expressly named; but the covenant being one which 'may be annexed to the estate, and run with the land, equivalent words, or a clear intent shown by the whole instrument, may suffice.”

The foregoing is supported by the later case of Huston v. R. R. Co., 21 O. S., 236. This was an action to appropriate private property for railroad purposes; after a jury had been impaneled all claim for damages for fencing was withdrawn from the consideration of the jury, upon the agreement of the company to make convenient crossings and forever maintain fences along said right-of-way across said premises. The land owner conveyed said property to another who, in turn, conveyed to still another, and said railroad w.as sold to another company, which refused to maintain said fences. The court held in the second paragraph of the syllabus:

“2. It is an agreement which runs with the land, so as to be binding between the assignees or grantees of both the parties thereto,” and yet the word “assigns” or “heirs and assigns” was not used.

Numerous other cases might be cited in support of the general proposition, and while it is true that some courts have elected to follow the first resolution in Spencer’s case, yet a greater number by far have elected to follow the second.

In determining whether a covenant runs with the land the material inquiries are:

1. Whether the parties meant to charge the land, and

2. Whether the burden is one that can be imposed consistently with policy and principle.

And it is so held in the above ease of Sexauer v. Wilson et al, 113 N. W., 941, second paragraph of the syllabus.

In the instant case John McLandsborough received but one dollar consideration for said right-of-way; beyond question the real consideration was the gas to be furnished for one fire and two if more gas was procured, and this “in the residence of John McLandsborough.” Not to or for John McLandsborough, but in the residence; therefore, the name “John McLandsborough” is descriptive of the residence in which the gas was to be furnished. Wherefore, the contention that John McLandsborough being dead, the obligation was discharged, is not justified.

The intention of the parties in the instant case as disclosed by their conduct is of some value here in construing their contract; the gas was furnished by the Ohio Gas Company in said resideuce until the death of John McLandsborough; after his decease to his son Seigel; then by the American Gas Company, the successor of the Ohio Gas Company, to Seigel, and later to Ina J. McLandsborough Johnson, and-until last May without a question; the parties so construed this contract themselves and the case of Mosier et al v. Parry, 60 O. S., 388, is applicable. The first paragraph of the syllabus reads as follows:

“1. Where the language of a contract is of doubtful import, it is proper to ascertain the circumstances which surrounded the parties at the time it was made, the object intended to be accomplished, and the construction which the acts of the parties show they gave to their agreement, in order to give proper construction to the words they have used in the instrument, and to determine its legal effect.”

Likewise the case of Kling, Admr., v. Bordner, 65 O. S., 86, is well in point. Also New Pittsburg Coal Co. v. N. Y. Coal Co., 31 C. D., 458, the second paragraph of the syllabus of which reads as follows:

“Evidence showing the practical construction which either party has placed upon a coal mining contract and the acquiescence therein by the other party, may be considered for the purpose of aiding in its proper construction. ’ ’

In harmony with the foregoing is M. E. Church Society v. Ashtabula Water Co., 10 C. D., 648, and another case worthy of notice in this connection is Railway Co. v. Porter, 12 N.P.(N.S.), 353. Resting the interpretation of the contract upon the conduct of the parties, it is conclusively shown that they understood the covenant as to free gas to be one running with the land.

■Second. Is the burden one that can be imposed consistently with policy and principle? As above observed the pecuniary consideration for said “right-of-way” was one dollar. It could not be successfully maintained for a moment that this, within itself, was a full and fair consideration for the enjoyment of said right by said company or its successors .and assigns so long as they might care to use it. In fact, the 'intention as gathered from said contract is exactly to the contrary, because the covenant as to free gas is inserted, which no doubt was then recognized by all parties as the real consideration. The one dollar, being merely nominal, negatives the theory that it was' the principal consideration or that it was so considered by the parties, whose conduct clearly indicates that they understood it to be a covenant running with the land. And so it is observed by Welch, C. J., speaking for the court in the above case of Huston v. Railway Co., beginning at page 246, as follows:

"Does the contract run with the land? Undoubtedly it does. It was an agreement to erect structures upon the land appropriated, and to keep them up so long as that was enjoyed.”

That is to say, that so,long as the right-of-way was used or enjoyed the fences were to be maintained. It is also provided in said agreement that the Scio Gas Company, its successors and assigns, shall have the right to enter said premises at all times to repair and maintain said gas lines; thereby all the rights granted originally to the Ohio Gas Company were saved to its successors and assigns; why not likewise to the owner of the freehold, which carries the burden of the easement and which the gas company is insisting it shall continue to carry? It is only fair and reasonable that free gas be furnished in said residence so long as said right-of-way is enjoyed. And such obligation may be consistently imposed upon the defendant company or its assigns while it continues to exercise such right. When the defendant company purchased said "right-of-way” it necessarily acquired it subject to all the conditions imposed .and by its acceptance of the contract was bound by the conditions thereof; and so it is held in Hickey v. Railway Co., 51 O. S., 40, the first paragraph of the syllabus reading as follows:

"1. That the grantee, by accepting the deed, will be deemed to have entered into .an express undertaking to perform the condition contained in the deed, and such undertaking will run with the land, and become obligatory upon a subsequent owner by purchase from the grantee of the company. ’ ’

Likewise it is held in Railroad Co. v. Priest et ux, 31 N. E., 77, and so it is held in the anonymous case, F. Moore, 159, 300, as .above quoted, and where it is said that acceptance of possession makes one liable for all covenants except collateral.

The defendant company knew or is charged with knowledge of this covenant relating to free gas, because said contract is a matter.of record in this county (Lease Record 11, pp. 113, 114), and it was the purchaser of said right-of-way from the Ohio Gas Company.

In 11 Cyc., 1080, there is a helpful discussion of "covenants running with the land” in which it is observed:

‘ ‘ In order that a covenant may run with the land, that is, that its benefit or obligation may pass with the ownership, it must respect the thing granted or demised, and the act covenanted to be done or omitted must concern the land or estate conveyed.”

Further discussion will be found at pages 1051 and 1081. The instant case comes well within the above definition.

Further discussion is superfluous here, in view of the fact that for eighteen years free gas was furnished in the said John Mc-Landsborough residence by the Scio Gas Company and its successor, the defendant here, during the occupancy of John Mc-Landsborough and that of his son, and until recently that of -his daughter; the defendant company took said right-of-way with a full knowledge of the conditions; it is still using it and must be bound thereby. The word "assigns” is not necessary or essential in order to make a covenant run with the land, and judgment must therefore be entered for plaintiff.

Farr, J., concurs.


text:
    “FURNISHING” INTOXICATING LIQUOR. IN DRY TERRITORY.
    Court of Appeals for Wayne County.
    Lazarus Baysinger v. State of Ohio.
    Decided, May, 1918.

      Prosecution for Providing Beer for Privileged Persons — In Territory Made “Dry" Under the Beal Law — Provision for Such a Supply is in Violation of the Statute.

    The keeping in the basement of a private house in dry territory of kegs of beer, with permission to certain persons to visit said basement and draw and consume the beer so provided, constitutes a furnishing of intoxicating liquor within the prohibition of the statute, and a conviction of the occupant of the house, who ordered the beer and collected the money for its payment from those who visited the place, will not be disturbed by a reviewing court.

      A. D. Metz, for plaintiff in error.

      Benton G. Hay, Prosecuting Attorney, and T. W. Orr, contra.
   Houck, J.

Error to the Common Pleas Court of Wayne County.

The plaintiff in error was tried and convicted of keeping a place for the unlawful furnishing of intoxicating liquors as a beverage. The same is alleged to have been done in the village of Rittman, Wayne county, Ohio, and which village at the time was “dry territory,” having been made so by a local option election.

To the judgment of conviction, by the mayor of said village of Rittman, the accused prosecuted error to the common pleas court, and the same being affirmed, error is here prosecuted seeking a reversal of the judgment of said courts.

The record discloses the following undisputed facts:

The village of Rittman is dry territory, by reason of a local option election. On Saturday evening, August 18th, 1917, the sheriff of Wayne county, with a search and seizure warrant, visited the home of Baysinger, and in the basement of the home seized four eight-gallon kegs of beer, a beer pump and some beer glasses and buckets. At said time and place there were eight persons (including the accused) present, either in the room or just on the outside, and some were drinking beer.

In.the basement where the beer was found there was nothing else stored except the’ four kegs of beer, with ice on them, and a long bench with beer glasses on it. One of the kegs had a beer pump in it. That several times a week during the summer of 1917, and prior to August 18, people would go to said basement, singly, and sometimes four or five at a time, and during this time a drayman was seen, on several occasions, unloading beer there, the number of begs delivered being from one to five at a time, and this was as often as three times a week during the aforesaid period.

The beer, on all these occasions, was purchased by those who visited the basement, each paying his proportionate share of the cost. Baysinger usually collected the money and ordered the beer, and all deliveries were made to him, and drunk by the contributors in the basement of the Baysinger home. The basement door was left open when beer was there, and the contributors were privileged to, and some of them did, visit the place and drink beer on their way home from work, and at other times, when Bay-singer was not present.

The question presented to the court is: Under these facts and the law, was the accused properly convicted?

The conviction was had under favor of Section 13232, General Code, which reads:

£ £ Whoever, after thirty days from the date of an election held within a municipal corporation to determine by ballot whether the sale of intoxicating liquors as .a beverage should be prohibited therein, á majority of votes at such election having been cast in favor of prohibiting such sale within such municipality, in any manner directly or indirectly, sells, furnishes, gives away, or otherwise deals in intoxicating liquors as a beverage or keeps or uses a place, structure or vehicle, either permanent or transient, foi^such selling, furnishing or giving away or in which or from which intoxicating liquors are so sold, given away, furnished or otherwise dealt in, shall be fined not less than fifty dollars nor more than two hundred dollars, and for a second offense shall be fined not less than one hundred dollars nor more than five hundred dollars, and for each subsequent offense shall be fined not less than two hundred dollars and imprisoned not less than ten days nor more than sixty days.”

Counsel for plaintiff in error maintains that the conviction was wrongful, and not warranted under the facts and law, because the accused had a legal right to associate himself with others in the ordering of beer, and the mere fact that they drank the same on the premises of the accused two or three times a week, during the summer of 1917, and the further fact that it was in his home or private residence, would not constitute, in law, a keeping of a place for the furnishing of intoxicating liquors unlawfully.

This claim might have some force if our Legislature had not spoken, and clearly and fully disposed of same by statutory provision.

Section 6099 reads:

‘1 In clubs, societies or other combinations of individuals where intoxicating liquor is kept for use of as a beverage by individual members thereof in territory where the sale, furnishing or giving away of intoxicating liquor as a beverage is prohibited, the keeping of such place shall be held to be the keeping of a place where intoxicating liquors are furnished or given away in violation of the local option laws.”

Section 6102 reads:

“Ina territory in which the sale, furnishing or giving away of intoxicating liquor as a beverage is prohibited, the keeping of intoxicating liquor in a room, building or other place, except in a regular drug store or in a bona fide private residence, shall be prima facie evidence that such liquor is kept for unlawful sale, furnishing or giving away.”

So far as this case is concerned, the Legislature of our state, by the above enactments, has saved the courts much work and labor by clearly defining the elements necessary to constitute the offense of keeping a place for the unlawful furnishing of intoxicating liquors. The language used is not ambiguous, and needs no interpretation, but is plain and explicit.

The accused, might not have known of these provisions of our law, or he might have failed to properly interpret same, but it matters not, as a failure to know the law excuseth no one for its violation.

It seems to us that the crux of this case centers in the proper definition of the word furnishing, as found in the statutes herein-before referred to, and as thus interpreted, when measured by the conceded facts in this case, how stands the issue as between the State of Ohio and Lazarus Baysinger ?

The Supreme Court of this state has said that the supplying of intoxicating liquors to a minor, to be drunk by him, is a furnishing of the liquor to such minor, although it was purchased by another, and supplied by the seller to the minor in pursuance of such purchase.

The facts in this ease abundantly show that while no liquors were sold, and while the proof does not in so many words indicate that any was given away to other than the persons who assembled there from time to time, yet it is clearly proven that Baysinger furnished the place, secured the beer, and made it possible for the men to congregate quite frequently in the basement of his home, and there they drank beer on numerous occasions.

By reason of this, his home — in- law — had been transformed into a public resort, where persons were permitted to congregate “in dry territory,” and by so doing attempted to set aside the wishes of the residents of the village of Rittman, who had heretofore by a majority vote at a local option election said, as provided in Section 13232, General Code, that, “whoever, within such municipality, in any manner directly or indirectly, sells, furnishes, gives away, or otherwise deals in intoxicating liquors as a beverage, or keeps or uses a place, structure or vehicle, either permanent or transient, for such selling, furnishing or giving away, or in which or from which intoxicating liquors are sold, given away, or furnished or otherwise dealt in, shall be fined,” etc. * * *

If we are to be guided by the language thus used in the above legislative enactment, and in doing so give to the word “furnishing” its commonly accepted meaning, we are unable to find other than the courts below in this case.

The word “furnishing” is broad and comprehensive in its scope and meaning, and in so holding we are only carrying out the legislative intent of the law makers who enacted the statute in which it is used.

The statutes relating to the violation of local option laws, like all criminal statutes, were passed to be enforced, and the will of the people in voting “territory dry” must be held sacred, and violators thereof must atone to the offended law, if under the facts and a proper application of the law to same, they are found to be such violators.

In our examination of the testimony and evidence, as contained in the bill of exceptions, and a review of the entire record before us, -we find no errors of a prejudicial character that would justify a reversal of the judgment of conviction entered in this case. ■ ¡

Judgment affirmed, and case remanded for execution.

Powell, J., and Shields, J., concur.


text:
    COMPENSATION FOR PROSECUTOR IN MUNICIPAL COURT.
    Court of Appeals for Butler County.
    State, ex rel Primmer, City Solicitor, v. Board of Commissioners of Butler County et al.

    Decided, November 27, 1914.

      Prosecution of Criminal Cases in the Municipal Court of Hamilton— Compensation Therefor.

    1. It is tlie duty of the city solicitor of Hamilton to act as the prosecuting attorney of the municipal court of that city.
    2. It is the duty of the county commissioners to make a proper allowance to the city solicitor for his services in state cases before the Municipal Court of Hamilton.

      B. F. Primmer, City Solicitor, for plaintiff in error.

      Benj. A. Bickley, Prosecuting Attorney, contra.

      Affirmed, County Commissioners v. State, ex rel Primmer, 93 Ohio State, 42.

   Jones (Oliver B.), J.

This is an action to compel the board of county commissioners to make an allowance of compensation to the city solicitor for his services as prosecuting attorney of the Municipal Court of Hamilton.

There is no question that the municipal court has the jurisdiction of a police or mayor’s court, and in our opinion Section 4306, General Code, and 'Section 1579-122, General Code (103 O. L., 353), make it the duty of the city solicitor of Hamilton to act as the prosecuting -attorney of such court, and_ under the terms of Section 4307, General Code, he “shall receive for this service such compensation as council may prescribe, and such additional compensation as the county commissioners shall allow.”

In our opinion it is the duty of the county commissioners by virtue of this section to make a proper allowance to the city solicitor for his services as prosecuting attorney in state cases before the Municipal Court of Hamilton. In making this allowance they can take into consideration the amount of compensation he receives for city cases, and the extent of the services rendered in both city and state cases.

The court below was, therefore, in error in sustaining the demurrer of defendants below to the, petition for mandamus, and the judgment will be reversed and the case remanded for further proceedings.

Swing, J., and Jones (E. H.), J., concur.


text:
    LIABILITY TO ADJOINING PROPERTY OWNER. WHERE AN EXCAVATION IS CARRIED MORE THAN NINE FEET BELOW THE CURB.
    Court of Appeals for Hamilton County.
    Sophia Ulland v. The Foss-Schneider Brewing Company.

    Decided, July 15, 1916.

      Excavation — Liability Arises Without Regard to Care and Skill in Making — Where 'the Excavation is Carried More than Nine Eeet Beloio the Curb and Adjoining Property is Injured Thereby — Continuing Nature of the Liability — Owner of Lands Within a Flooded District Subject to the Same Rule — Questions of Fact to be Submitted to the Jury.

    1. Where the owner of a lot in a municipality excavates and constructs a cellar to a greater depth than nine feet below the curb grade of the street on which such lot abuts and such excavation causes any damage to any wall, house or other building upon the lots adjoining thereto,, such owner is liable in a civil action to the property injured to the full amount of such damage without regard' to the care or skill with which said cellar may have been constructed or maintained (G. C., 3782).
    2. The duty of one who digs such cellar beyond the statutory depth is not only to protect the adjoining property while the work is in progress but during the entire time he continues to maintain such excavation.
    3. This rule applies equally to lands within what is known as a flooded district subject to customary periodical overflow from back water from a river at flooded seasons and such conditions must be considered ad provided for in the construction and maintenance of the walls and concrete floors of such cellar so as to pevent the passage into it of the soil from under the foundation walls of adjoining structures and their consequent undermining.

      i. The question whether the proximate cause of the damages arising from the undermining and collapse of a house was the withdrawal of ¡proper lateral support by reason of the maintenance of an adjoining excavation more than nine feet below curb grade or was tbe result of an extraordinary and unprecedented flood regardless of such excavation, is a question of fact to be determined upon evidence by the jury and is not a question of law to be decided at first instance by the court.

      Powell & Smiley, for plaintiff in error.

      Bettinger, Schmitt & Kreis, for defendant in error.

      For opinion below see, Ulland v. Foss-Schneider Brewing Co., 20 N.P. (N.S.), 375, and for opinion of the Supreme Court see, Foss-Schneider Brewing Co. v. Ulland, 97 Ohio State.

   Jones (Oliver B.), J.

Plaintiff and defendant were the owners respectively of adjoining parcels of real estate fronting upon the west side of Freeman avenue south of G-est street in the -city of Cincinnati. Plaintiff’s property consisted of a two and a half story brick building upon a lot 20 feet front lying immediately north of the premises of defendant which fronted in all 192 feet upon Freeman avenue and contained buildings and appurtenances thereto used by the defendant as a brewery.

The cellar of plaintiff’s house was a little more than nine feet in depth, and the foundation walls were V/z feet thick. The cellars of the brewery, extending from Freeman avenue westwardly 102 feet, were of different depths; the one immediately adjoining plaintiff’s property was more than 16 feet in depth and, being under what was used as a driveway, was called “the driveway cellar.” Immediately adjoining the driveway cellar on the south was a cellar 30 feet in depth, which was divided into a cellar and a sub-cellar, the level of the first cellar being about 14 feet below the sidewalk and about 2% feet above the level of the driveway cellar. The walls dividing and supporting these cellars were of good masonry, that between the plaintiff’s property and the driveway cellar being a 3 foot wall, and that between the driveway cellar and the adjoining thirty foot cellar a 3% foot wall.

These brewery cellars were used for the purpose of storing beer in large casks. A small gutter ran in the cement floor along the south wall of the driveway cellar towards the southwest corner where it connected with an iron pipe six inches in diameter which ran through the dividing wall and into the sub-cellar on -the south, emptying into an iron tank which was a large receptacle sunk in the corner of the sub-cellar, being .about six feet in depth and twenty feet in circumference, into which all of the brewery cellars above mentioned drained. From this tank, by means of a siphon pump, the water was pumped into the city sewer. Large quantities of water were used in these brewery cellars for «leaning casks and scrubbing floors.

The floors of the brewery cellars were cemented with a layer of cinders and a layer of concrete and then a finished surface of cement, the layer of concrete being thin, as no frost' reached the cellars.

The soil underlying plaintiff’s property and in the surrounding neighborhood consisted of a sandy loam which extended to a depth of about thirty feet below the surface or curb line of Freeman .avenue.

These premises are located in what is known in Cincinnati as part of the “flooded district,” being visited from time to time by the flood water from the Ohio river.

In March, 1913, one of these great floods occurred, and on March 30 the waters of the flood rose almost to the curb line of Freeman avenue. Defendant to save its cellars from inundation by water backing up from the sewers closed up the sewer connections in the higher cellar thus keeping the flood waters out of its cellars until the 29th or 30th of March, when it discovered that water and sand was coming through the north wall of the driveway cellar, being the w.all adjoining plaintiff’s premises, and that there were cracks in said wall from one to four feet above the floor of said cellar, permitting the water and sand, to wash into said driveway cellar. On Sunday defendant endeavored to plug up these cracks and holes through which the water and sand were flowing with planks and oakum, but its efforts proved unsuccessful, and the flow of water and sand became so great in volume that the one pump which was ordinarily used for the purpose of pumping water from the tank in said cellar w.as insufficient, and plaintiff placed other pumps therein and operated the same, for the purpose of preventing the water from flooding its cellars and destroying its beer.

The flow of sand into said cellar became so great as to cause the iron pipe leading from the driveway cellar into the lower cellar to become choked up to such an extent that it was broken off by defendant to permit the water and sand to flow through said drain.

Defendant company continued to operate its pumps on Sunday and Sunday night, and about two o’clock on Monday morning, March 31, 1913, the tenants and occupants of plaintiff’s house were awakened by the noise caused by the breaking of the wall of. plaintiff’s building, and by the suction and falling of bricks and other material into the excavation underneath plaintiff’s premises, and they discovered that the yard or passageway of plaintiff’s premises lying next north of defendant’s property had been undermined and that the cellar walls and the wall of said building had fallen into the excavation. Thereupon defendant urns notified through its engineer, who had charge of defendant’s property at that time, that the pumping of the water by defendant was undermining plaintiff’s property. Defendant’s engineer then went to plaintiff’s property and inspected it, but refused to stop pumping, as he had orders to prevent the water coming into defendant’s cellar. And defendant continued to pump the water and sand out of its cellar until about nine o’clock on Monday morning, March 31, 1913, at which time the building inspector of the city of Cincinnati ordered said pumping stopped. Previous to the stopping of the pumping the floor of the driveway cellar bulged upward and cracks four or five inches wide appeared the entire width of said cellar, and large quantities of sand, loam and debris was forced into said cellar. It was shown that the south wall of plaintiff’s house was destroyed and the building damaged and rendered untenantable, requiring time and expense to make necessary repairs. '

Immediately after the receding of the water defendant -made repairs to its north wall of the driveway cellar, adjoining plaintiff’s property.

At the close of plaintiff’s evidence defendant filed a motion for an. instructed verdict in its favor, which was granted and such verdict returned. A motion for new trial filed by the plaintiff was overruled, and judgment was entered upon said verdict.

Plaintiff seeks here to secure a reversal of the judgment rendered in the court below, urging that the court erred in overruling the motion for a new trial and in sustaining the motion for an instructed verdict in favor of the defendant.

The theory of defendant, which was adopted by the trial court and upon which a verdict was directed, was that the damages to the defendant were caused by the flood; that the unusual flood should be deemed “an act of God” for which no one would be liable; and that this flood might be regarded as a common enemy of all persons who were or might become subject to the invasion of its waters, and that each owner had the right to make such efforts to prevent damage by the flood as the necessity of the occasion required, subject, however, to the principle that he must, regard the rights of his neighbors and not by any negligence of his in protecting himself cause damage to them. The decision is based upon the principle laid down in Rex v. Commissioners, 8 Barn. & Cress., 355. In that case the commissioners of sewers for the levels of Pagham had taken down and removed certain groynes and other works which had been theretofore erected for protection against the inroads of the sea, and had constructed other works in their place. The effect of such changes caused the sea to flow with increased force against the land of one Cosens, for which he claimed damages. The decision in effect required the complaining land owner to protect himself by such works as he might find necessary.

The same principle is announced in other cases upon which defendant relies, among which are: Lamb v. Reclamation Dist., 73 Cal., 135; Hoard v. Des Moines, 62 Iowa, 326; Turnpike Co. v. Green, 99 Ind., 205; Railroad v. Stevens, 73 Ind., 278; Bass v. State, 34 La. Ann., 494.

This theory, however, is based upon the conclusion that the proximate cause of plaintiff’s injury was the flood itself. It leaves out of view the making of the excavation by the defendant and the construction and maintenance of the extraordinarily deep cellars, which plaintiff insists are the proximate cause of her damage.

The right to recover, which plaintiff seeks, is based upon the doctrine of lateral support as amplified and extended by the enactment of Section 3782 of the General Code, which is in part as follows:

“If the owner or possessor of any-lot or land in any municipality, digs or causes to be dug any cellar, pit, vault or excavation, to a greater depth than nine feet below the curb of the street or streets on which such lot or land abuts, or, if there be no curb, below the established grade of the street or streets on which such lot or land abouts, or if there be no curb or established grade below the surface of the adjoining lots, and by such excavation, causes any damage to any wall, house or other building upon the lots adjoining thereto, such owner or possessor shall be liable in a civil action to the party injured, to the full amount of such damage.”

At common law the owner of land was entitled to have it supported in its lateral state by the land of the adjoining owner, but that right did n-ot extend to require the support of buildings that had been placed upon the land. Ohio, as well as many other states, however, has provided by statute for excavations in municipalities to a reasonable depth for cellars, and for damages to buildings as well as to the land itself for excavations greater than that reasonable depth. The right of the owner of land to natural support is held to be a property right and not a mere easement. Belden v. Franklin, 8 C.C.(N.S.), 159; Burgner v. Humphrey, 41 O. S., 330; Joyce v. Barrow, 67 O. S., 264, 270.

Similar statutes have been sustained in: Bloomingdale v. Duffy, 71 (Misc.), N. Y., 136; Dorrity v. Rapp, 72 N. Y., 307; Regan v. Keyes, 204 Mass., 294.

In Keating v. Cincinnati, 38 O. S., 141, it was held that the right exists as against municipal corporations as well as against individuals, and the city was held liable in the ease of an excavation for a street, even though the property injured did not immediately abut upon the street. ■ In the opinion in that case, at page 148, White, J., used the following language-

‘' It can make no difference in principle whether the property is flooded and the soil washed away, or the property is injured and the soil removed from some other cause. It is the injury to the property that gives the right of action; and the author of it is bound to make reparation.”

Where the right of lateral support has been invaded liability exists, whether the excavation was done carefully or negligently. The doctrine is well stated in Jones on Easements, Section 588:

1 "The only neglect necessary to give a cause of action -is the neglect to furnish proper supports to the land of the adjoining owner to prevent its caving in. The only proof necessary is of the making of the excavation and of the injury to the adjoining land in consequence. It is not incumbent on the plaintiff to show that the excavation was made by the defendants in a careless, negligent or unskillful manner.
“Though one in excavating and removing the soil on his own land has not conducted the work negligently or .in a manner contrary to the custom of the country, he is liable to his neighbor for any injury to his land occasioned by such excavation.
“Where one, by digging on his own la,nd, causes the adjoining land of another to fall, the actionable wrong is not the excavation, but the act of allowing the other’s land to fall. It is the wrong to the right of property that attaches to the right of lateral support. Hence the measure of damages is the diminution of the value of the land by reason of the falling of the soil, and it is immaterial whether this falling be called ‘caving’ or ‘washing,’ provided it is the natural and proximate result of removing the lateral support.”

And Section 591:

* * # The artificial support substituted in place of the natural support of the soil may be of any material, provided it is sufficient for the purpose, and it is continued so as to maintain the land in its proper condition.
‘ ‘ One can not escape liability for an injury caused by insufficient support by showing that the support was a reasonable or customary support, or that the excavations were made with care and skill. It is simply requisite that the support shall prove to be sufficient and effectual.”

The ease of Cahill v. Eastman, 18 Minn., 324, while not altogether turning upon the question of lateral support is instructive as bearing upon the instant ease. It states in tbe syllabus tbe general doctrine, as follows:

“The common right of each, is not to be injured in his property by the way in which another uses his.
“"Where it is sought to make one accountable for the consequences of acts done by him upon his own land, the question, in general, is not whether he exercised due care, but whether his acts caused the damage. If they necessarily tend to injure his neighbor in his pre-existing rights of property, he is liable in damages for the natural and necessary consequences thereof, irrespective of any considerations as to the care and skill with which such operations may have been conducted.”

See, also: Ulrick v. Dakota, L. & T. Co., 51 N. W. (S. D.), 1023; Gildersleeve v. Hammond, 67 N. W. (Mich.), 519; Mears v. Dole, 135 Mass., 508.

It is contended by the plaintiff that the cause of the damage was the existence of these deep cellars constructed by the brewery, together with the fact that the walls and -bottom of same were not sufficiently tight and strong to prevent the passage of the soil and sand in its semi-fluid condition into these deep cellars from beneath the shallower cellar of the plaintiff.

It would appear that if all the cellars had been of the same depth, say nine feet, there would have been no such injury to plaintiff notwithstanding the flood, even though the defendant had plugged up the openings of the cellar where they connected with the sewer and had kept the water pumped out, because then merely the water in plaintiff’s cellar might have passed into defendant’s cellar but it would not have carried out the sand and soil under the footings of plaintiff’s wall or disturbed her foundations in any way. Nor, in all probability, would any injury have resulted if the defendant had allowed the water to accumulate in its cellars to the. same level as that in the plaintiff’s cellar, for the hydrostatic pressure of the water on both sides would have prevented the disturbance of the soil and sand- under the foundation of plaintiff’s house.

In ordinary cases the defendant would have an undoubted right to prevent the water coming into its cellar if it were able to do so, and also to pump out any water that did run in. But where, as claimed in this case, defendant has made unusual excavations and constructs cellars to .an unusual depth, far below that fixed by statute, and has failed to so construct and maintain them as to preserve the lateral support to the adjoining structure of its neighbor because of such pumping out of the water and the consequent removal and running out of the sand and soil from under the neighbor’s foundations, then the result would be as disastrous and of the same character as though in the original excavation plaintiff’s wall had not been protected but had been suffered to fall into the excavation.

The mere fact that the wall itself stood can not excuse defendant, so long as it allowed soil and sand to pass through its interstices or to pass under its footings by bulging up and breaking the floor of the deep cellar, thus withdrawing the sand and soil from under the foundations and accumulating it in defendant’s cellar.

The duty of one who digs such a cellar beyond the statutory depth is not only to protect the adjoining property while the work is in progress, but during the entire time that he continues to maintain such excavation. The right of a land owner to have his land and buildings sustained while an excavation was being made and a -cellar constructed far beyond the statutory depth would be of slight value if only requiring them to be supported during the construction. And the mere fact that the adjoining wall continued to stand up would be of little value if his sub-soil had been allowed to slide or percolate into his neighbor’s pit, and his building consequently demolished. A case directly in, point is Bernheimer v. Kilpatrick, 53 Hun., 316.

Nor is there any difference in the rule of lateral support where, as in this case, the soil which has been withdrawn consists of a fluid mixture of sand and loam so blended with the water as to be inseparable from it. Columns v. Willard, 7 C. C., 113; affirmed 54 O. S., 615.

Under the evidence offered by the plaintiff in this case she was entitled to have the ease submitted to the jury to determine whether the damages to her property resulted because of the existence to an unusual depth of defendant’s cellars, and its failure to prevent the removal or withdrawal of her sub-soil during its operations in pumping out the water.

In our opinion the court erred in withdrawing the case from the jury and directing a verdict. The judgment is therefore reversed and the cause remanded for a new trial.

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


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

text:
    PROSECUTION OF A FERTILIZER. COMPANY.
    Court of Appeals for Warren County.
    The Harveysburg Fertilizer Co. v. State of Ohio.
    Decided, August 12, 1915.

      Nuisance — Maintenance of, Alleged Against a Fertilizer Company— Flection Between Counts — Joining of Distinct Offenses — Jury Need, Not lie Directed to Retwrn Special Findings — Criminal Law.

    1. Reviewing courts will allow a rather wide discretion to trial courts in the matter of compelling an election between different counts of one indictment.
    2. As a general rule distinct offenses may be joined in different counts of the same indictment, either where they arise out of and are connected with the same transaction, or where they are connected with the same subject-matter.
    3. Where there is a plea of not guilty in a criminal case, the court is not required to direct the jury to return special findings or answer interrogatories, and this is true as well where the defendant is a corporation.

      Brandon & Ivins and Willis Bacon, for plaintiff in error.

      Frank C. Anderson, contra.
   Jones (E. H.), J.

The plaintiff in error was indicted for maintaining a nuisance. As its name indicates, it is engaged in the business of manufacturing fertilizer from the carcasses of dead beasts, its plant being located at Harveysburg in Warren county, Ohio. The indictment contains three counts. The first count of the indictment alleges that “by reason of the boiling and drying- of the flesh and entrails of beasts at said place ¡and in said buildings as aforesaid divers noisome and offensive smells during the. time., aforesaid, were occasioned, so that the said place, buildings and business bscomes injurious to the health, comfort and property of the persons there residing, to the common nuisance of ¡all the people of the state of Ohio there lawfully being and abiding, and to the common nuisance of all persons lawfully being upon and passing along the public highway located by and contiguous to the said place and buildings.” The second count alleges that “the said the Harveysburg Fertilizer Company did at the time aforesaid and at the place aforesaid unlawfully receive and cause to be received the bodies of dead beasts and deposited and caused to be deposited said dead bodies at said place in plain view of persons passing along and over the public highway located along and contiguous to said property of the said the Harveysburg Fertilizer Company, and unlawfully did permit said bodies there to remain until by reason of their decomposition they gave off noisome and offensive odors during the time aforesaid, so that the said place and business became injurious to the health, comfort and property of the persons there residing, to the common nuisance of all the people of the State of Ohio there lawfully being and abiding, ¡and to the common nuisance of all the people passing over and along the public highway located along and contiguous to the property of the said the Harveysburg Fertilizer Company.” And the third count of the indictment states that the said fertilizer company “unlawfully and purposely did corrupt and render unwholesome and impure a certain water-course then and there being ¡and flowing unto and through the said county of Warren and known as ‘ Caesar’s Creek ’ by putting offal, filth and noxious and offensive substances into said water-course to the damage and prejudice of other persons residing along said water-course in said county of Warren.”

To this indictment the defendant filed a demurrer and motion to quash, both of which were overruled by the trial court, and exceptions were taken. Thereupon the case came on for trial before a-jury which found the defendant company guilty upon the first and second counts of the indictment, and not-guilty upon the third -count. Judgment was entered upon this verdict assessing a fine for each offense, and ordering an abatement of the nuisance found by the jury to exist.

Several alleged errors are pointed out by counsel for the plaintiff in error. After the jury had been impanneled and sworn, a motion was made by defendant to require the state to elect upon which count of the indictment it would proceed to trial. The court overruled this motion, and its action in so doing is claimed to be error.

We think the authorities cited in the brief of plaintiff in error upon this point do not support its contention,, -but on the other hand show that the court was correct in overruling said motion

In Bailey v. State, 4 Ohio St., 441, it is held:

‘ ‘ Several distinct offenses may be joined in different counts of the same indictment, as a general rule, either where they arise out of, and are connected with, the same transaction, or where they are connected -by the same subject-matter. ’ ’

The first proposition of the syllabus in said ease holds:

“Where an indictment charges two or more offenses, arising out of distinct -and different transactions, the court trying the cause may require the prosecutor to elect upon which charge he will proceedbut the action of the court, in this respect, being a matter of discretion, can furnish no ground for a writ of error. ’ ’

Without citing further authority, it seems to be the policy of reviewing courts to allow a rather wide discretion to trial courts in the matter of compelling election -between different counts in one indictment. The case of Stockwell v. State, 27 Ohio St., 563, and Bainbridge v. State, 30 Ohio St., 264, are cited by counsel for plaintiff in error, but' have no application here, since the question there determined arose from indictments containing only one count, the evidence however having a tendency to prove two or more offenses.

The second error assigned is that the court refused to allow the jury to answer twenty interrogatories propounded by the accused. It has been held in this state that Sections 5200 and 5201, Revised Statutes (now Section 11463, General Code), have no application in criminal eases. ’ (See Smith v. State, 59 Ohio St., 351.) The claim that this case is taken out of the rule there laid down, by its being guasi-eivil, we think is not well founded. The plea here was one of not guilty, the same as in other criminal cases, and the Supreme Court held expressly in the Smith case, above cited, that where there is a plea of not guilty the court is not required to direct the jury to return special findings or answer interrogatories.

"We have examined the special charges requested by defendant which the court refuged to give, and find no error in the court’s action. "Without entering at length upon a discussion of those charges we might state that they are all subject to the objection that they are drawn upon the theory that a person upon trial for a crime may establish his' innocence by proving some one else has been guilty of the same offense.

The fourth error urged in the brief we think is answered by our holding to the effect that it was right for the court to order the trial to proceed upon the three counts of the indictment. If the defendant can be tried upon two or more counts, the jury had .a right, if warranted by the evidence, to find the defendant guilty upon one or two of said counts, and the court had the duty to pass sentence and enter judgment upon the verdict V) found.

The fifth assignment of error is stated as follows: “The court erred in not directing a verdict for the accused.” It is urged in this connection that there is a variance between the proof and the indictment, in that the indictment charges that the stench was created by “boiling and drying the flesh and entrails of the beasts,” while the evidence, it is claimed, shows that there was no boiling and drying but that the cooking was produced by the application of steam. We have read the opinion of the trial court upon this question, delivered in passing upon the motion for a directed verdict, and approve what the learned judge there said. Section 13582, General Code, fully meets this objection, and is as follows:

“When, on the trial of an indictment, there appears to be a variance between the statement in such indictment and the evidence offered in proof thereof, in the Christian name or surname, or both or other discription of a person therein named or described or in the name or description of a matter or thing therein named or described, such variance shall not be ground for an acquittal of the defendant, unless the court before which the trial is had, finds that such variance is material to merits of the ease or may be prejudicial to the defendant. ’ ’

There was no error in the court’s refusal to require ran election by the prosecutor after the close of the evidence. Such action of the court would have been proper and necessary had more than one offense been proven under an indictment containing but one count. The trial court correctly passed upon this question at the beginning of the trial, as we have before found, and the motion made at the close of the evidence was not well taken.

Finding no error in the proceedings, the judgment of the common pleas court will be affirmed.

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


text:
    ACTION IN MANDAMUS NOT APPEALABLE.
    Court of Appeals for Butler County.
    State, ex rel Welch, v. Deneen, Director of Public Safety, etc.
    Decided, November 22, 1915.

      Jurisdiction on Appeal — Not Defeated hy Failure to Note Filing of Appeal Bond on Appearance Docket — Proceedings in Mandamus May he Reviewed on Error Only.

    1. The notation of the filing of an appeal bond on the appearance docket •is not jurisdictional, and when an appeal bond is given within the statutory period a failure to make a notation thereof on the appearance docket at the time it is given does not affect the appeal.
    2. The amendment of the Constitution of Ohio, providing for the organization and jurisdiction of the court of appeals, has excluded a statutory proceeding such as mandamus from the cases which can be reviewed in the court of appeals on appeal, and when such review is desired it must be had by error proceedings.

      Clinton Egbert, for plaintiff.

      B. F. Primmer, contra.
   Jones (Oliver B.), J.

This ease is heard on a motion to dismiss the appeal. Two grounds are urged: the first, that the judgment having been entered June 29, 1915, and the appeal bond filed September 29, 1915, the said bond was filed more than thirty days after the judgment was entered, and Section 12226, General Code, was. not complied with and the appeal must, therefore, be dismissed.

The transcript filed with the papers herein -shows that the appeal bond was given June 30, 1915, and then approved by the clerk in accordance with the statute, but it appears that the clerk failed to note the giving of this bond upon the appearance docket or mark it as having -been filed until September 29, 1915. The jurisdictional requirement of Section 12226 is that the undertaking should be given, and that appears to have been done in this case. Of course it should be noted upon the appearance docket at the same time it is given, but such notation does not appear to be jurisdictional.

The second ground urged for dismissal is that under the terms of Section 6, Article IV of the Constitution as amended, this case is not appealable, as it is not equitable in its nature and is not a chancery case.

Prior to the amendment of the Constitution cases in mandamus were appealable to the circuit court. (Dutlon v. Village of Hanover, 42 Ohio St., 215, and State, ex rel, v. Philbrick, 69 Ohio St., 283.) The statute would still seem to permit such an appeal, if it alone were to be considered; but the amendment to the Constitution providing for the organization and jurisdiction of the court of appeals has excluded a statutory proceeding such as mandamus from the cases which can be reviewed in the court of appeals, and such review when desired must therefore be had by error proceedings.

The motion to dismiss will be granted.

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