text:
    APPLICATION OF THE RULE OF LAST CHANCE.
    Circuit Court of Cuyahoga County.
    Francisci Galati v. The Erie Railroad.
    Decided, June 11, 1907.

      Negligence — Facts Establishing “Last Chance” Must be Pleaded — Plaintiff Must Remove Suggestion of Contributory Negligence — Noise Caused by Passing Train May Require More Care in Maintaining Lookout for Trains on Another Track.

    1. Plaintiff can not recover for negligence which warrants the application of the rule of “last chance” without alleging It in his petition.
    2. In an action for wrongful death, if the evidence of the plaintiff suggests contributory negligence on the part of the deceased, then it becomes the duty of the plaintiff, before he can recover, to remove that suggestion of contributory negligence.
    3. "Where one is engaged in labor upon a railroad track, the fact that a long noisy freight train is. passing upon an adjoining track would make it necessary for him to be more careful in keeping a lookout for trains approaching on the track upon which he is working.

      <7. M. Shallenberger and 'Harry F. Payer, for plaintiff in error.

      Cushing & 8idda.ll, contra.
    Marvin, J.; Winch, J., and Henry, J., concurs.
    Salvatore Galati was a laborer working. on the line of the Erie Railroad near Hiram, Portage county, in this state. On the 25th of May, 1905, he was working with a gang of laborers near the place specified, when he was directed by his foreman to leave the gang with which he was working and go to work on a ditch a few hundred feet away from the rest of the gang. This ditch came up very near to the railroad track and was some four ieet in width and about a foot deep. Shortly before five o’clock, which was quitting time for the gang, a passenger train going east on the .line of the road struck and killed Galati, and it is to recover for this death that the action below was brought.-. The result in the court below was a verdict and judgment for the defendant; to reverse the judgment the present proceeding's are prosecuted.
   There was a double track along this part of the railroad, trains going east taking the south track and those going west, the north track. At the time of the accident which killed Galati, a long freight train was moving noisily along the north track to the west. The allegations of negligence in 'the petition are that the defendant was negligent in failing to warn Galati of the approach of the passenger train, and was negligent in the operation of this freight train, and in failing to warn or caution him of the danger of working between and near said tracks; that the defendant was grossly careless in omitting to maintain a lookout to warn Galati and other workmen working upon said tracks of the approach of the passenger train, and in neglecting to furnish Galati with a safe place in which to work and in failing to apprise the said decedent of all the dangers of the then existing situation; that it was negligent in operating its passenger train at a high and dangerous speed and in failing to give a sound or warning or give a signal of its approach.

The place where Galati was working was in a cut, and the banks .ah' either side were so high that one looking to the- west from his place of work could see a train at . a distance .of not more than 350 feet, there being a curve at this point in the road. It is claimed that these allegations of negligence are such as to authorize the plaintiff to show that the engineer saw Galati and that after he saw him he could have prevented the train from striking him, and that if this were shown, then, even though Galati was wanting in proper care on his. part; still a recovery might have been- had.

.An effort was made- on the part of the plaintiff to introduce evidence on this subject, and though, perhaps, no inquiry was made of any witness which exactly raised the question, still the court held substantially, as appears at page 85 and following of the record, that this line of inquiry could not be gone into. In this, the court committed no error. In the ease of Drown v. Northern Ohio Traction Co., 76 O. S., 234, it is held:

"Since the plaintiff can recover only upon the allegations of his petition, he can not recover upon negligence which warrants the application of the rule of ‘last chance’ without alleging it in his petition.”

So that one can not recover on the last chance doctrine, that is where the plaintiff has negligently put himself in peril and that peril becomes known to the defendant in time to save him, and it fails to do so, unless the fact be distinctly pleaded that the defendant, after knowing of the plaintiff’s peril, neglected an opportunity to save him.

Complaint is made of the charge of the court in which this language is used:

“The fact that a freight train was passing on a west bound track and making a loud noise at the time Galati was killed, would not excuse him from looking and listening for approaching trains, but on the contrary, since the noise of the freight train -^onld to a certain' extent prevent his hearing, the noises of the bell or the whistle of the passenger train, it became Galati’s duty to be all the more careful in' looking for trains, which might approach on the track near or upon which he was killed.”

It is said that this ought not to have been given, because the very nature of the work in which Galati was engaged would prevent him from keeping á look-out for approaching "trains," and to a degree, tliis is true. He could not keep a constant look-out for approaching trains and successfully perform his work in the ditch, and only such look-out as he might be able, without 'failing to perform his work properly, could be required of him. But this did not relieve him from caring for his own safety; he was near to-the railroad-track; he knew that the purpose of the ■railroad track was to afford a place for trains to travel upon, and that a train was liable to pass at that point, and if he knew nothing of the times of trains, lie; knew that such train was liable to pass at any moment, and the ditch being four feet wide, it would seem that he might have worked in the ditch and been fit a safe distance from the track to have avoided the injury, and since knew that a train was passing which made so much more noise than a passenger train would be likely to make, it was certainly not requiring too much' of him that he should have taken -greater precautions at such time than when no such extraordinary noise was about' him. •

"Complaint is further made that the court erred in the use of the following language to the jury, when treating on the subject of contributory negligence:

■ ‘‘If the evidence of the plaintiff suggests contributory negligence on tbe part of the deceased in this case, then it would be the duty of. the plaintiff, before he could recover, to remove that suggestion of contributory negligence. ’ ’

It is said that no burden is properly placed upon the plaintiff to overcome any suggestion of contributory negligence, uiiless such suggestion goes to the extent of raising the presumption of megligenee on the part of the party injured, and the language used in most of the cases is that where a presumption of negligence is raised by the evidence offered on behalf of the injured party the burden is put upon him to overcome it. But we find in the case of Robison & Weaver v. John Gary, 28 Ohio St., 241, this language used in the syllabus:

“3. It is only when the injury is shown by the plaintiff and there is nothing that implies that his own negligence contributed to if thal the burden of proving contributory negligence can pr'opefly be said to be cast on the defendant; for when the defendant’s own’ case raises the suspicion that his own negligence contributed to the injury, the presumption of due care on his part is so far removed that he can not properly be relieved from disproving his own contributory negligence by easting the burden of proving it on the defendant, the same as if the presiimp.tion in favor of the plaintiff was unquestioned in his case."

This fully justifies the language in the charge complained of, providing there were facts in the case which justified the application of the principle. We think there were facts which justified it. The cleeedent in broad daylight was struck by a passenger train. This, of itself, without some explanation suggests io the ordinary mind that there must have been negligence, until some explanation of how he came to be thus struck is made. It is not here intimated that explanation was not made that tended to overcome the suggestion, but we think there was enough to raise the suggestion by the evidence, and therefore the charge was not erroneous in that regard.

It is urged that the evidence in the case is such that the verdict is clearly against its weight. We are not prepared to say this is so. On the evidence the case was perhaps very close, but the jury under proper instructions, found for the defendant and we are not prepared to say that such finding was clearly against the weight of the evidence.

The result is that the judgment of the court of common pleas is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    PROCEDURE ON A COUNTER-CLAIM.
    Circuit Court of Cuyahoga County.
    Alfred G. Thompson v. Edwin Treat.
    Decided, May 27, 1907.

      Actions — Counter-Claims—Defendant May Maintain Independent Action on Subject for Counter-Claim.

    Where a defendant has a counter-claim against the plaintiff, he is not obliged to set it up in that action as a defense, hut, may institute an independent'action upon it.

      Farquharson & Euggett and Foster & Foster, for plaintiff in error.

      J. A. Fogle and J. G. Heald, contra.
    Marvin, J.; Henry, J., concurs.
    Suit was brought in the court of common pleas by Thompson against Treat, setting out that the plaintiff had employed the defendant as his agent to negotiate the sale of a farm owned by the plaintiff in Summit county; that the defendant acting as such agent represented to the plaintiff that he could exchange said farm for a certain residence property in the city of Cleveland, and could obtain for the farm, which the plaintiff says he ■had authorized the defendant to sell for the sum of $10,000, in addition to .such residence property, the sum of $5,000 in money,. The plaintiff says that he authorized the defendant to make such exchange, providing some good judge, of the value of. the residence property, residing in the vicinity, would pronounce it .worth $5,000; that the defendant reported to the plaintiff that a man residing in the vicinity of the residence propery, and well ■qualified to know-its value, pronounced it to be worth $5,000, by reason- of which the plaintiff was induced to convey his farm to the owner of the residence property and accept in payment said residence property and said, sum of $5,000. Plaintiff says, as a matter of fact, the representation made by the defendant that a person residing in the vicinity of the property and competent to judge of its value had pronounced it to be worth $5,000, was not true, nor had any such person been called upon to fix any value upon this residence property, and that as a matter of fact the residence' property was worth not more than $3,500, and so he says that he was damaged in the sum of $1,500 by the wrongful conduct of.the defendant and he prays to. recover judgment for that amount.
   To this petition the defendant answered, admitting that he had acted as agent'for the plaintiff in the sale of his farm and that through his agency the exchange of properties; that is, the .farm and residence property and the money consideration of $5,000 .was made; he denies all other allegations in the petition.

For the second defense he says that he (the' defendant in this action) brought a suit against the plaintiff for money, an that one of the items claimed in that suit by him was commissions for the sale of this farm; that he recovered a judgment against the plaintiff in that action, and so he says plaintiff is barred from prosecuting this action, because the validity of the claim made by the plaintiff here was involved in the action brought by this defendant against the plaintiff.

To this answer the plaintiff replied, denying that the matte involved in this action was litigated in the former action.

On this state of the pleadings the court of common pleas, on motion of the defendant, entered judgment in his favor on the pleadings, and to reverse that judgment this proceeding in error is brought.

On the part of the plaintiff in error it is urged that whether the matters involved in this action were in fact litigated in .the former action, they could have been there litigated, and that being so the defendant in that action, if he had any claim against the defendant in this action growing out of this transaction, was bound to have pleaded it.

On the part of the defendant in error it is admitted that this would be true, but for the fact that the claim set out in the present action constitutes a counter-claim against the plaintiff in the former action, and that the rule which requires a defendant to set up all the defenses which he has to a claim made in an action against him does not apply where such defense consists of a counter-claim. That the claim set out in this action would have .been a counter-claim to that set up in the former action seems clear, from the definition of a counter-claim, as given in Section 5069 of the Revised Statutes, which reads:

“A counter-claim is a cause of action, existing in favor of a defendant, and against a plaintiff, or another defendant, or both, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action.”

Surely the claim set up in this action grows out of the same transaction and is connected with this same subject-matter as that involved in the original action, and it remains, therefore, only to consider whether, where a defendant has a counter-claim against the plaintiff, he is bound to set it up as a defense, whr suit is brought against him by the party against whom he has such counter-claim.

This seems to be settled in this state in Witte v. Lockwood, 39 Ohio St., 141, the first clause of the syllabus reading:

“The general rule is that a defendant is bound to set up every defense, legal or equitable or both, which he may have to the action, and uaives those not pleaded, but where the facts claimed to afford a defense are sufficient to constitute a counter-claim, there is an exception to such general rule. ’ ’

This propcstion is sustained by the ease of Bridge Company v. Sargent, 27 Ohio St., 233, and by Swanson v. Cresop, 28 Ohio St., 68.

That this was the intention of the statute seems plain from tin' provisions of Section 5089, Revised Statutes, which reads:

“The court, at any time before the final submission of the cause, may, on motion of the defendant, allow a counter-claim or set-off to be withdrawn and the same may become the subject-matter of another action; and on motion of either party, to be made at the time such counter-claim or set-off is withdrawn, an action on the same shall be docketed and proceeded in without process, and the court shall direct the time and manner of pleading therein; and if an action be not so docketed, suit may be brought as in other cases.”

We reach the conclusion, therefore, that the court of common pleas erred in rendering judgment for the defendant upon the pleadings, and for this error the judgment is reversed and the cause remanded.


text:
    RELATION TO PROMISSORY NOTE OF ENDORSER. ON BACK.
    Circuit Court of Cuyahoga County.
    Peter F. McGuire v. The Kennedy Company.
    Decided, May 27, 1907.

      Negotiable Instruments Act — Liability of Irregular Indorser.

    Under Sections 3173ft, 3173i and 31737c, Revised Statutes, of the uniform negotiable instruments law, the liability of an irregular indorser is the same as that of a regular indorser, and he can not be held without demand having been made upon the maker and notice of dishonor given.

      J. F. Herrick and Frank Higley, for plaintiff in error.
    Smith, Taft & Arter, contra.
    Marvin, J.; Henry, J., concurs.
    But one question is necessary to be considered in this, case and that is, the relation to a promissory note of one who is not the payee, who endorses the note upon the back while it is in the hands of the maker, the note being thereafter delivered to the payee.
   Without question, before the recent legislation upon the subject, such endorser would be liable as a maker of the note.

In 1902, however, the Legislature of this state enacted a statute in reference to negotiable paper, consisting of several sections, one of which, 3173k, reads:

“A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate words his inT tention to be bound in some other capacity.”

Section 3173i reads:

“Where a person not otherwise a party to an instrument places thereon his signature in blank before delivery, he is liable as indorser in accordance with the following rules:
“1. If the instrument is payable to the order of a third party, he is liable to the payee and to all subsequent parties.
“2. If +he instrument is payable to the order of the maker or drawer, or is payable to bearer, he is liable to all parties subsequent to the maker or drawer.
“3. If he signs for the accommodation of the payee, he is liable to all parties subsequent to the payee.”

Section 31737c provides:

“Every endorser who indorses without qualification * * * engages th.it on due presentment, it shall be accepted or paid or both as the ease may be, according to its tenor, and that if it be dishonored and the necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the holder, or to any subsequent indorser who may be compelled to pay it.”

This legislation has been enacted in a considerable number of states, and the manifest purpose of it is that the rule governing commercial paper shall be uniform in the several states in which this legislation is enacted.

The Circuit Court of Clark County, in this state, in a case reported in the Ohio Law Bulletin, December 24, 1906, has held that this statute made no change in the law as to the relation sustained by the irregular endorser to commercial paper. The court of common pleas in the present ease held in accordance with this holding of the Circuit Court of Clark County. In this we think there was error.

One of the states which has adopted the legislation such as ours, is Massachusetts, as will be found in Volume 1 of the Revised Statutes of Massachusetts, published in 1902, at page 637. Sections 80 and 81 of the Massachusetts Statutes are in the exact words of our Sections 3173h and 3173 i, and their Section 83 is in the exact words of our Section 3117k.

. Under this Massachusetts legislation it is held in the case of Thorpe v. White et al, 74 Northeastern, 592:

“But after the negotiable instruments act became operative this distinction was abolished, and the effect of her signature was to make her an indorser as to all parties.”

The word “she,” as used in the opinion, refers to one who endorses a note, not being otherwise a party to it before delivery.

The state of New York has adopted the same legislation, and in the case of Moran v. Lange, 25 App. Div., 11, the court say that the new legislation has changed the rule of such an endorser to the instrument.

It seems to us clear that the intention of the Legislature was to so change the relation of an irregular endorser as that he should be treated exactly as any other endorser, and that such being the case no recovery could be had against him except upon demand being first made of the maker and notice of dishonor served upon the endorser.

Entertaining these views the judgment of the court of common pleas is reversed, and the case remanded.


text:
    VALIDITY OF WARRANT ISSUED BY MAYOR.
    Circuit Court of Cuyahoga County.
    John Lenarcie v. State of Ohio; and Frank Park v. State of Ohio.
    Decided, May 27, 1907.

      Writs — Mayor's Seal Necessary to Validate Warrant for Arrest.

    A warrant for arrest issued fry the mayor of a municipality without affixing to it his official seal, as provided in Section 1536-773a, Revised Statutes, is invalid.

      Glenn E. Griswold and O. E. L. Castle, for plaintiff in error.
    W. B. Wheeler, contra.
    Marvin, J.; Henry, J., concurs.
    The conclusion reached in these cases depends upon a proposition applicable alike to each, hence the result is here announced in both. The judgment of the court of common pleas affirming the judgment of conviction rendered by the mayor of Nottingham must be reversed, as well as the judgment of the mayor. The result reached is in conflict with the views entertained by me at the hearing, but an examination of the authorities has convinced both me and my associate that the mayor in each of these eases should have discharged the prisoner, upon the motion to discharge made before him, and this because his seal was not attached to the warrant issued for the arrest.
   I am disposed to criticize counsel for plaintiff in error in not having taken pains to cite the statutes upon which he relies by their present numbers. He cites Sections 1745 and 1837; both of those sections are repealed, and it would not be asking too much of counsel, as we think, to require them to cite the sections of the statute as they now are. The sections as they now are, however, upon which the plaintiffs in error rely, are Section 1536-774, which requires that the council shall furnish to the mayor the corporate seal of the corporation, describing the seal, and Section 1536-773», speaking of the duties of the mayor, which provides that “he shall subscribe his name and affix the official seal to all writs, processes, transcripts and other official papers.”

Among the authorities which have been examined and which convince us of the necessity of the affixing of the seal, to make any writ, including a warrant for arrest, valid, which is issued by an officer having a seal, we call attention to Boal, Lessee, etc., v. King et al, 6 Ohio Reports, 11. . In this case it is said in the opinion by Lane, J.:

“No principle is more definitely settled than that the process of a court having a seal can only be evidenced by its seal, which is the appointed mode of showing its authenticity. Without it, a majority of the court hold such process void.”

The first clause of the head-note reads:

“An execution issued without a seal from a court having and using a seal is void and of course all proceedings under if are void too.”

In Rankin v. Sanderson, 35 Ohio State, 482, it is held that the statute which" provides that a bill of exceptions must be signed and sealed is to be strictly construed, and that no bill can be considered except it is sealed, in case it is taken from a court having a seal.

There is an old English case found in Willes Reports, at page 411, Padfield v. Cabell et al, in which it is held that a warrant of distress without a seal is valid, but only because no seal is required by the terms of the statute.

. In State v. Goyette, 11 Rhode Island, 592, the question under consideration was whether a warrant issued by an officer having a seal and returnable to a court having another and different seal, should have upon it the seal of the officer issuing the writ or the seal of the court to which it was made returnable, and at page 593 this language is used:

“Under the statute, criminal complaints are to be made to a trial justice or his clerk, and the warrants are to be issued- by such justice or clerk. A warrant, therefore, should be under the seal of the justice or clerk who issues it. It should not, as the defendant contends, be under the seal of the court to which it is returnable. ’ ’

In Tackett v. State, 24 American Decisions, 582 (this is a ease in the Supreme Court of Tennessee), the syllabus reads:

“Warrant of arrest in a criminal case not having the magistrate’s seal is void.”

In Bell v. Farnsworth, 30 Tenn., 608, this language is used in the opinion at page 611:

“But it appears on production of the warrant, although it had been obtained at the instance and on the oath of the plaintiff, that yet it was defective in legal formality deemed in law to be indispensable. Giving effect to this objection to the full extent of this proof, it goes no further than to vitiate the warrant, and any proceedings-which occurred subsequent to the warrant and predicated upon it.”

In Bishop’s New Criminal Procedure, Volume 1, Section 227, this language is used:

“Opinions are divided as to whether the warrant of a justice of the peace must be under seal, where the statute is silent on the question. Chitty deems that though a seal is commonly looked upon as necessary, still in the absence of a statutory requirement, the warrant seems to suffice if in writing and signed by the magistrate. It has been adjudged valid without seal in South Carolina, New Hampshire and New York; but in some of the other states the seal is held to be essential.”

By an examination of these cases it will be found that wherever it has been held that a seal is not necessary to the validity of a warrant there was no statute requiring a seal to be affixed. In this state, as appears by the statutes *to which attention has already been called, the mayor is provided with a seal, and is required to attest all writs issued by him by using his seal. The want of this seal was not waived by the prisoner in either of the cases under consideration, but in each ease the motion was made to discharge because of the invalidity of the warrant for want of such seal, which motions were overruled.

The fact that the mayor later on affixed his seal does not cure this defect. The result is the reversal of these cases as already stated, and the order here is that both of the plaintiffs in error be discharged.

Notwithstanding this holding, which entirely disposes of the cases, we have examined the other proceedings complained of as erroneous and find that if the warrants had been valid, the other proceedings were without error.


text:
    DETERMINATION AS TO WHETHER. TERRITORY IS “WET” OR “DRY.”
    Circuit Court of Cuyahoga County.
    Edward Miller v. State of Ohio.
    Decided, May 20, 1907.

      Error — Court Will Not Refuse to Allow Petition in Error Because Not Filed Within Thirty Bays When Court Has Not Been in Sesstion Buring that Time — Intoxicating Liquors — Judqe Who Issues Warrant for Alleged 'Violator of Beal Option Law. May Try the Case— Status of Territory as “Wet” or “Bry" Fixed hy Earliest Legal Finding.

    1. When a motion for leave to file a petition in error is presented to the clerk of the circuit court, within the time prescribed by law, the court will not refuse to allow the petition to he filed on the ground that leave was not obtained within thirty days, when the court was not in session during that time.

      2. The judge who has issued a warrant for one accused of violating any local option law is not thereby disqualified to try the accused under the provisions of Section 43G4-30, Revised Statutes.
    3. Where a petition to declare a certain residence district “dry” territory has been properly filed, with a common pleas judge, a hearing had, and a finding made that the territory is “dry,” the status of the territory will not be changed by a later finding by a mayor of the municipality that the territory is “wet,” even though the petition upon which the mayor acted was filed at an earlier date than that upon which the judge acted.

      George W. Shaw, for plaintiff in error.

      A. W. Lamson and F. D. Morrow, contra.
    Marvin, J.; Henry, J., concurs.
    Miller was brought before the Hon. George' L. Phillips, a judge of the court of common pleas of this county, and found guilty upon an affidavit charging him with violating the second section of an act passed by the Legislature' on the 22d day of February, 1906 (98 Ohio Laws, 12), entitled' “An act to provide for the- enforcement of local option laws -and to prohibit the- sale of intoxicating liquors as a beverage.” This section is now Section 4364-300, Revised Statutes, and to reverse the judgment of conviction, a motion is now made for leave to file a petition in error in this court.
   As to this petition the-facts are, that at the time the motion was filed, which was within the time prescribed by law for-the filing of such petition in error, this court was not in session, nor was it in session for several weeks thereafter, nor until the time within which petition in error could, under the terms' of the statute, be filed.

■ On the same day that this motion was filed ‘the plaintiff in error delivered to the clerk of this court a petition in error, and had the same filed as of that date.

On the part of the defendant in ei’ror, it is urged that- this motion should not be granted for the reason that it is provided by statute that such petition must be filed within thirty days after the rendition of the judgment complained of.- This court has already held, that where the court is not in session at the time when the petition in error should be filed, so that there-.is-no opportunity to file a petition in error, if such motion is filed within the proper time the motion will be heard after the thirty .days, providing the court has not been in session before that time. We think the Legislature could not have intended a pei’feetly vain thing in providing for proceedings in error under this statute. The contention made by the defendant in error would make it possible for those wanting prohibition within a given territory, to filé their petition' (and it would be equally true that those desiring to prevent prohibition within a given territory could file their petition) at such time that it would' be certain the circuit court'would not be in session within the thirty days after the hearing of such petition, and so either side desiring to prevent a proceeding in error could, by filing the petition within a speeifiel time, make it practically certain that no proceeding in error could ever be had. This would practically nullify the provision of the statute with reference to proceedings in error. This could not have been' the intention of the Legislature, and we hold that where the motion is filed within the time and the petition is presented to the clerk for filing at the same time, the court will not refuse to allow the petition to be filed simply on the ground that leave was not obtained within the thirty days, when the court was not in session during that prescribed time.

We come, then, to consider the question whether any error is shown upon the record .which would justify the granting of leave to file the petition in error.

On the part of the plaintiff in error a motion was made before the trial court to dismiss the accused upon the ground that the affidavit upon which the prosecution was based purports, by language used in the bearinning of such affidavit, to have been made before Judge Phillips, whereas it is certified to have been sworn to before a deputy clerk of the common pleas court. This motion was overruled, and we think properly overruled. The affidavit might have been made before any officer authorized to administer oaths, as this deputy clerk was. It is said, however, that the prisoner should have been discharged on the ground that the warrant upon which he was arrested was issued by the judge of the court.. A motion to that effect was made and overruled. There was no error in this action of the court. The warrant was issued by an officer authorized under the act to try the ease, and necessarily this officer must have had some means of getting the prisoner before him.

The section which provides for the trial is numbered 18 and reads:

“Any common pleas or probate judge with whom an affidavit is filed, charging the violation of any of the local option laws of the state, prohibiting the sale of intoxicating liquors as a beverage, when the offense is alleged to have been committed in the county in which such judge may sit, shall have final jurisdiction to try such case upon such affidavit without a jury, unless imprisonment is a part of the penalty, and in any case under this act, it should not be necessary that any information be filed by the prosecuting attorney or that any indictment shall be found by the grand jury.”

It is said that there was error in the trial in that the location of the place of business of Miller, which it is admitted was a saloon where intoxicating liquors were sold, was not within the territory in which such sales were prohibited. If this place of business is within territory in which the sale of intoxicating liquors, or the beeping of a place for the sale of intoxicating liquors was prohibited by law, confessedly Miller was guilty.

The facts are: That a petition was filed, under the statute authorizing the filing of same, with Judge Ford, a judge of the court of common pleas. That petition before Judge Ford was heard, and upon the hearing it was found that all the proceedings were regular and proper and that the sale of intoxicating liquors was prohibited by law in the territory described in said petition.

Another petition, however, was filed with the mayor of the city of Cleveland, praying that in the territory described iii said petition the sale of intoxicating liquors should not be prohibited. That the sale of intoxicating liquors should not be prohibited within that territory was found by the mayor and these proceedings were regular.

The petition filed with the mayor was filed before the petition filed with Judge Ford, above' referred to, but the petition filed with the mayor was not heard until after Judge Ford had decided that in the territory included in the petition filed before him, the selling of intoxicating liquors was prohibited, so that when the hearing was held before the mayor it had already been found.and decided by Judge'Ford,under the statute authorizing such proceedings, that the territory described in the petition was what is ordinarily denominated as “dry” territory.

. We know of no provisions of law nor of any reason why the fact that a petition was on file with the mayor to have this territory declared “wet,” should in anywise interfere with Judge Ford’s jurisdiction to find that it should be “dry,” and he having so found, no subsequent action of the mayor, upon the petition filed with him, could take away the prohibition resulting from the hearing before Judge Ford, and the motion for leave to file petition in error is overruled.


text:
    VALIDITY OF TITLE ACQUIRED BY SHERIFF’S WIFE SUBSEQUENT TO SALE BY SHERIFF.
    Circuit Court of Cuyahoga County.
    Minnie Marcellus Bruce v. Kate T. Ryan et al.
    Decided, March 18, 1907.

      Fraud — Purchase hy x Wife of Sheriff of Properly Formerly Sold at Sheriff’s Sale Not Per Se Fraudulent.

    The mere fact that the wife of a sheriff, has at some subsequent time • purchased property sold at a sheriff’s' sale does not establish the existence of fraud in the sale.

      Carr, Stearns & Chamberlain, and A. H. Martin, for plaintiff in error.

      Smith, Taft & Arter, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
    This is an appeal by the defendants to this court from the court of common pleas. - The facts .are that in 1893, William R. Ryan was the sheriff of this county,- and Kate 'T. Ryañ was his wife. An action was pending in the court of common pleas brought by the .Citizens Savings & Loan . Association' against one Marcellus, to foreclose a mortgage, and there were several lienholders who answered in the ease, which proceeded in said court of common pleas so that an order of'sale of the premises described in the mortgage was made' on the 18th day of May; 1893; the property was appraised at $5:000, and after due advertisement the property was sold by the sheriff on the 23d day of June, 1903, to S. L. Halle for $3,334, being two-thirds of the appraised value.' On the 24th of June of the same year the' order of sale was returned, and on the 27th day of June the sale was confirmed, and a deed was. made on that day to Halle: On the 1st of July, 1893, Halle paid the money to the sheriff,' and the deed was on the same day delivered to him. The books of the sheriff, particularly one' called "Order and Sale Book,” show that the money was paid by Halle to -the sheriff on the 30th day of June; the sheriff entered on his book the receipt of the entire purchase money, and by his book called "Cash Execution Docket” it is shown that on the 31st day of .July he paid the avails of the sale, less the taxes and his costs, to' the clerk of the court, and it was receipted for by Charles A. Kuzell, deputy clérk,' as shown on page 31 of that book. On the '2'Oth day of October, 1893, Halle deeded this property to Kate T. Ryan,- the wife of the sheriff, and Mrs. Ryan filed her deed for record in February, 1894.
   Suit is brought here to have the sale set aside and the property declared to remain in the ownership of those to whom it belonged before the sale was made, subject to the liens thereon, of course. The evidence shows such facts as have so far'been detailed, and the evidence further shows, if Mrs. Ryan is to be believed and Mr. Ryan is to be believed, that at the time of the sale of the property to Halle there was no understanding or arrangement at all that Mrs. Ryan or Mr. Ryan was to be the purchaser of the property or that it was ever to become their property. But it is said.that the sale having been made by Halle to Mrs. Ryan, the consideration in the deed was $5,000, whereas,as a matter of fact nothing more was paid by Mrs. Ryan than $3,500. It is said that this fact is a suspicious circumstance and that we ought to hold that the sheriff was the trustee of the property, and continued to be the trustee; that it was a sale made indirectly to himself, because the evidence shows that the money was really furnished by Ryan. It is true, however, that there was an arrangement between Ryan and his wife, at the time he was the sheriff, that she was to act as matron of the jail during his time as sheriff, and was to receive $1,000 per. year for her services. It appears that she was not on any'pay roll and that no book account of her services was kept. She received money from her husband during this time for clothing and her other necessary expenses. But we regard this as of slight consequence, as the sale was practically a sale to Ryan. We- are not satisfied that there was any arrangement between Halle and the sheriff, that the sheriff should receive the property from Halle. We think that the circumstances and the evidence are such as to justify the conclusion that the purchase by Ryan from Halle was made in good faith; that the sale to Halle was made in good faith; that it was a bona fide- sale, that Halle bought the property and thereafter not wanting it, for Mrs. Ryan says that he stated to her where there was another party who wanted to buy it from him, sold the property to the Ryans. He had paid for it and got his deed for it, and then kept it for some little time. Mrs. Ryan says that she and her husband wanted a home. They had-several children.

When Mr. Ryan got this office of sheriff one of the things he thought of was.that they should purchase a home. But it is said that it is hardly to be supposed that he contemplated that he would use this property as a home, as it was not well adapted for that purpose; that they certainly could have found something more desirable.' In any event they used it as a home and they lived in it more than ten years as their home.

A good many authorities have been cited to us, or rather our attention has been called to a good many authorities, including the case of Barrington, Admr., v. Alexander, 6 O. S., 189. In that case the administrator, under order of court, for the payment of debts, made a sale to parties who failed to pay for the property. They did not pay and the administrator arranged with the appraiser that he should charge himself with the money as though he had received it, and he should take a deed of the property, instead of putting the property up again for sale, as he should have done, because there was no completed sale. In that ease it is said in the syllabus:

“3. The fiduciary relation of an administrator to the land of his intestate is not terminated when it is struck off and declared sold at public auction, but continues until the title of the vendee becomes perfect, by the payment of the purchase money and the delivery of the proper deed of conveyance, whereby the title passes from the heirs of the estate, unincumbered by any charge in favor of the administrator or the estate arising out of the sale.”

But in the case now under consideration the purchase money had been paid, the title had passed, the sale was perfected, and there remained nothing more for the sheriff to do in connection with it.

Attention is ealled also to the ease of Piatt et al v. Longworfh, found in 27 Ohio State Reports, 159.

In that case it is shown that an arrangement was made between the executor and certain' others, that the property should be sold, that he would furnish money for the purchasers and charge himself with it, as though he had received it in good faith. He took the property which was deeded to him later by these purchasers. It was held that he held it as a trustee; that it was not a perfected sale.

The case which seems to us to be the nearest to that which is now before us for consideration is that of Charles Rammelsburg et al v. Robert Mitchell and William Lape, 29 O. S., 22. In that case Robert Mitchell and another, as trustees under the will of Frederick Rammelsburg, deceased, sold the interest of Rammelsburg in a St. Louis business. Rammelsburg and Mitchell were large manufacturers of furniture in Cincinnati; they established stores in quite a number of cities, including a store in St. Louis, and Mitchell, one of the trustees under the will of Rammelsburg, sold the interest of the said Rammelsburg in the St. Louis business to one William Mitchell. It does not appear whether there was any relationship between the trustee and the purchaser. The sale was made in January, 1904. In February, 1904, one month later, Robert Mitchell, one of the trustees, purchased a one-sixth interest from William Mitchell in the property sold at. St. Louis.. The property sold at St. Louis was an undivided interest of Bammelsburg, deceased, sold to Robert Mitchell, partner of the William M|itehell, who made the purchase of Rammelsburg’s interest, Robert bought from William a one-sixth interest, so that each then owned one-half of the business at St. Louis. The court found no actual fraud and no constructive fraud and upheld the sale to Robert. Robert was still, however, a. trustee under the will of Rammelsburg; not for this property, but for the other property still in his hands.

We reach the conclusion here, therefore, that judgment should be rendered for the defendants, and the petition dismissed at the costs of the plaintiff.


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    EXTENT OF LIABILITY OF BONDSMEN IN ATTACHMENT.
    Circuit Court of Cuyahoga County.
    The Williams Edwards Company v. Max Golstein.

    Decided, May 20, 1907.

      Attachment — Bondsmen Liable Only for Value of Property Taken.

    The. signers of a bond given in an attachment proceeding under the provisions of Section 6513, Revised Statutes, are liable only for the value of the property attached and not to the extent of the Judgment which may be secured in the case.
    . Klein (& Harris, for plaintiff in error.

      Peskind & Perris, contra.
    Marvin, J.; Henry, J., concurs.
    The only question in this ease is whether a bond given in an attachment proceeding under Section 6513, Revised Statutes, binds the obligors in the bond for the payment of whatever judgment may be recovered in the action, or whether it simply binds the obligors to the extent of the property attached. The court of common pleas held the obligation to be the latter.

       Affirmed, Edwards Co. v. Goldstein, 80 Ohio State, 303.

   On the part of the plaintiff in error attention is called to a decision of the Court of Common Pleas of Hamilton County, rendered by Judge Pfleger in the ease of Margaret McCartney y. Ed. E. Williams, 3 O. L. R., 692, in which, in a well considered opinion the contrary doctrine is held. That opinion with the authorities cited in it, impresses us as having much merit, and but for the fact that the circuit court of the second circuit has held otherwise, in the absence of any direct holding by the Supreme Court, we should be inclined to follow the reasoning in that ease. In the circuit court last referred to, in the case of Saxton v. Clymire, 3 C. C., 209, Judge Shauck, of the Supreme Court, distinctly holds the contrary; and the same court sitting in Franklin county in the case of Ross v. The Miller Merchant Tailoring Company, reported in 7 C. C., 51, also holds that the bond simply binds the obligors to the extent of the property taken in attachment.

In view of these two decisions, and as has already been stated, in the absence of any decision directly in point, of the Supreme Court, we affirm the judgment of the court of common pleas.


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    ACTION FOR. RECOVERY OF A REAL ESTATE COMMISSION.
    Circuit Court of Cuyahoga County.
    Louis Koblitz et al v. Harry Koblitz.
    Decided, July 1, 1912.

      Equitable Assignment Gan Only be Made of an Existing Fund.-

    A fund, to be the subject of equitable assignment, must have an actual or potential existence; hence, a promise in writing to divide with the promisee a commission thereafter to be earned, can not be treated as an equitable assignment of such commission, which may not be revoked by the promisor at any time before actual payment.

      J. H. Hogg and R. M. Morgan, for plaintiffs in error.

      F. J. Wing, contra.
    Niman, J.; Metcalfe, J., and Jones, J. (sitting in place of Judges Marvin and Winch), concur.
    The defendant in error was plaintiff, and the plaintiffs in error were defendants, in the court of common pleas.
   The plaintiff instituted his action in that court to recover of the defendants a real estate commission of $1,500 for negotiating a sale of property belonging to said defendants. By written instrument, dated April 8, 1931, the plaintiff became entitled to receive from the defendants a commission of $1,500 in the event a certain option given by the defendants to one J. L. Free on a tract of land on Noble road, in Cuyahoga county should result in a sale, and the purchase price be paid according to the terms of the option.

There was no controversy on the trial of the ease about the commission having been earned. The defense was,’ that the plaintiff had assigned to the said J. L. Free one-half of his commission, and that the defendants had paid the same to Free. Before the action was started the defendants had tendered $750 to the plaintiff and in the course of the trial he accepted this amount over which there was no dispute, and the trial continued as to the other $750.

The verdict was for the plaintiff and judgment was entered on the verdict after the overruling of the defendant’s motion for a new trial.

The payment of $750 to J. L. Free, relied upon to defeat the plaintiff’s claim, was made by the defendants in reliance, as they claim, upon a written order from the plaintiff to J. L. Free, which reads as follows:

‘ ‘ Cleveland, Ohio, February 23d, 1911.
“Mb. J. L. Free,
City.
“Dear Sir: As per my agreement with you, I am making a contract with Messrs. Wilkoff and Koblitz Brothers to pay me a cash commission of fifteen hundred dollars ($1,500), in case you buy the fifty (50) acres of land on Cleveland Heights, upon which you have taken an option, and in consideration of our agreement and your having taken said option I hereby agree to divide the said commission with you, and this letter shall constitute your order to Messrs, Wilkoff and Koblitz Brothers to pay you seven hundred and fifty dollars ($750) of the commission at the time that you finish the ten thousand dollars ($10,-000) payment upon the land.
“Harry Koblitz.
“Accepted
“J. L. Free.”

It was claimed by the plaintiff that before this order was accepted by the defendants he had revoked it and had given notice to them of his revocation. The defendants, on the other hand, deny that they had notice of such revocation until after they had accepted the order, and thereby obliged themselves to pay $750 to J. L. Free.

The issue of fact thus raised was submitted to the jury. There was a conflict of evidence concerning this question of fact and the jury found for the plaintiff.

There is nothing' to indicate that the verdict is so manifestly against the weight of the evidence as to justify any interference on this ground by this court.

The question remains, however, whether the plaintiff had any power of revocation over the order given by him to J. L. Free.

It is contended for the plaintiffs in error that the order operated as an equitable assignment to Free of one-half of the commission mentioned, and that the instrument created an equitable property right which could not be disturbed by any subsequent act of the defendant in error. If this contention be accepted, the necessary inference is that Harry Koblitz was not the real party in interest as to the claim asserted by him in the action below.

Pomeroy’s Equity Jurisprudence, Section 1280, contains the following statement:

“It is an established doctrine that an equitable assignment of a specific fund in the hands of a third person creates an equitable property in such fund. If, therefore, A has a specific fund in the hands of B, or in other words B, as a depository or otherwise, holds a specific sum of money which he is bound to pay to A, and if A agrees with C that the money shall be paid to O, or assigns it to C, or gives to C an order upon B for the money, the agreement, assignment, or order creates an equitable .interest or property in the fund in favor of the assignee, C, and it is not necessary that B should consent or promise to hold it for or pay it. to such assignee. In order that the doctrine may apply, .and that there may be an equitable assignment creating an equitable property, there must be a specific fund, sum of money, or debt, actually existing, or to become so in future, upon which the assignment may operate, and the agreement, direction for payment or order must be, in effect, an assignment of that fund or of some definite portion of it. ’ ’

Again in Section 1282 of the same work, it is said:

“'What shall amount to the present appropriation which constitutes an equitable assignment is a question of intention, to be gathered from.all the language, construed in the light of surrounding circumstances; for example, while it is not essential to the existence of an equitable assignment of a fund that the debtor, agent or depository should be expressly directed to pay over the money to the assignee, the absence of such a direction may tend to show an intention not to transfer a present interest in the fund, but that the arrangement is wholly executory and prospective.”

Looking to the language of the instrument which is claimed to have effected an equitable assignment of a half interest in the commission sued for, and an equitable property therein in J. L. Free, it will be seen that there was no fund actually in existence and none potentially in existence. The creation of the fund depended upon the contract that Harry Koblitz, in his communication to Free, says he is making with Mr. Wilkoff and Koblitz Brothers being actually entered into and also upon the consummation of the sale to Free in accordance with the terms of the option held by him. If it should be considered, however, that the commission sought to be recovered in the action below had a potential existence at the time the instrument claimed to operate as an assignment was executed, there is another thing to be taken into account.

It will be noticed that the instrument makes no present transfer of the interest which Harry Koblitz may subsequently acquire in a commission. The words are merely promissory in their nature. “I hereby agree to divide the said commission with you, and this.letter shall constitute .your order,” etc., is the language of the instrument.

The order on a future fund which constitutes an .equitable assignment is to be distinguished from a mere promise to appropriate such a fund or to give an order thereon. A promise or agreement to divide does not make the division an accomplished fact.

We think, therefore, that it was within the power of the plaintiff below to revoke the order or authority given in the instrument addressed to J. L. Free, and by him accepted, before the defendants accepted the same. The liability of the plaintiff to Free for such' a proceeding, is, of course, a question not before us in this case.

Error is claimed to have been committed by the trial court in certain rulings on evidence which have been called to our attention.

The defendant, in the course of the trial, sought to introduce evidence to prove that at the time of the option being given to J: L. Free and before the execution of the -writing under the claimed authority of which the defendants paid $750 to Free, there was an agreement and contract between the plaintiff and defendants by which he was to get $1,500 for selling the property, and that the written agreement for a commission on which the plaintiff founded his action was simply the result of putting into writing the agreement previously existing. ■ ■

The court excluded this evidence and the defendants, having duly excepted, complain of the exclusion.

■ The ruling of the trial court was correct. Previous understandings and negotiations were merged in the written agreement. It would have been a clear violation of one of the recognized rules of evidence to have admitted the evidence offered. .

The court also refused to. admit evidence offered by the defendants to prove that the plaintiff had stated to J. L. Free that he, Free, owned half of the commission, and requested him to buy the other half.

It is claimed for this evidence offered that it was competent as an aid to the construction of' the contract between the plaintiff and Free. The contract, however, is not ambiguous and requires the aid of no extrinsic evidence to make it clear. In our opinion the evidence concerning the construction placed upon the agreement by the plaintiff and Free was properly excluded.

Judgment affirmed.


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    LIABILITY FOR INJURY RESULTING FROM BLASTING.
    Circuit Court of Lorain County.
    Thomas G. Chapman and the City of Lorain v. Steve Lepotsky.
    Decided, June, 1912.

      Negligence — Independent Contractor, When Liable — Contributory Negligence Not a Defense in Gases of Gross or Willful Negligence,

    1. One who causes work to be done is liable for injuries that result from negligence and carelessness in its performance by the employees of an independent contractor to whom he has let the work, when the resulting injury, instead of being collateral and flowing from the negligence of the act of the employee alone, is one that might have been anticipated as a direct and probable consequence of the performance of the work contracted for if reasonable Care is omitted in the course of its performance.
    2. Where a city has given to a contractor the privilege of using high explosives in excavating for a sewer, it is the duty of the contractor to use reasonable care to know the conditions in the locality where he uses explosives, and if through failure to exercise such care, he explodes a blast in such proximity to a gas main as to break it and destroy adjoining property, both he and the city are liable for the resulting damage.
    3. It is error to refuse to instruct a jury that if plaintiff's negligence contributed in any degree to his own injury he can not recover even though the defendant be guilty of gross negligence.
    Marvin, J.; Niman, J., and Metcalfe, J. (sitting in place of Winch, J.), concur.
    Lepotsky brought suit against the two plaintiffs in error to recover damages growing out of an explosion of dynalite and the igniting of gas and a gas explosion, whereby said Lepotsky’s building was substantially destroyed and causing, also, great personal injury to him.
   The facts are substantially these:

For the purpose of constructing a sewer along Pearl avenue in said city of Lorain, the city entered into a contract with said Thomas G. Chapman, whereby Chapman was to construct said sewer for the city, and in the contract entered into between the city and Chapman it was provided that:

“When rock is encountered in excavating the sewer trench and it becomes necessary to use explosives to remove it, the following precautions must be taken by the contractor: First, the sewer trench where the blast is to be made, and for fifteen feet on either side of it, must be covered with a suitable covering of timber and plank. Second, barricades must be maintained across the street at least 200 feet in either'direction from the place where the blast is to be made. There shall be at least two men employed by the contractor to patrol the street and warn all persons in the vicinity immediately previous to the firing of the blast.” . '

The plaintiff’s building fronted on said Pearl avenue. Crossing said Pearl avenue, and not far from the building of said Lepotsky, was a main gas pipe through which gas was conveyed under high pressure by the gas company acting under franchises granted by said city. This gas pipe was about two and one-half feet below the surface of the ground. The bottom of.the excavation for the sewer was much deeper.

In the prosecution of his work Chapman caused to be exploded immediately under or near to this gas main a charge of dynalite, which is very explosive. It is shown by the evidence . that it is certainly not. less explosive than dynamite, and it is claimed to be much more explosive.

This explosion of the dynalite caused a rupture of the gas main from which large quantities of gas escaped and was ignited, causing a fire and explosion of gas which partly destroyed the building, and the explosion itself, together with such fire, resulted in the injuries already mentioned.

.... On the part of Chapman it was claimed in his answer that Lepotsky was negligent in- allowing gas to escape from pipes in and about his premises, and that the gas explosion and fire was the result of such negligence on his part, but the jury found otherwise, and we are content with the finding of the jury in that regard, and indeed it is not claimed that that defense was proven, so that the facts, briefly stated, are subsantially as hereinbefore set out.

Under these facts the jury found a verdict for Lepotsky against both Chapman and the city. It can hardly be doubted that Lepotsky was entitled to recover from somebody on account of the injury both to his person and to his property. It is urged, however, on the part of the city, that as the work was being done by an independent contractor, it was not responsible, and it is said that this is especially true because the provision in the contract is that the explosives were to be used only “when rock is encountered in excavating the sewer trench,” and it is urged that this explosive was used where rock was not encountered, but that only shale and earth, packed solidly, had to be removed at the place where this explosive was used.

The word “rock” is somewhat indefinite. The noun is defined by Webster as “A large mass of stony matter; the stony matter of the earth’s crust; in geology, any natural deposit or portion of the earth’s crust, whatever be its hardness or softness.”

We are not prepared to say that the material in which this explosive was placed did not come within the permission granted to Chapman, but whether it did or not, the city, by its contract, gave to him the right to use this dangerous explosive in his work. Of course that did not relieve him from liability in case he so used it as to injure others than the city, nor would it relieve the city, in the ease of an independent contractor, from liability .where it permitted such independent contractor, in the execution of his contract, to make use of those things which are inherently dangerous. This is settled by numerous cases in Ohio and elsewhere. Counsel are familiar with the eases; they are cited and ' quoted from in the briefs and seem to us to fully justify the proposition just made.

The facts claimed by the several parties are so admirably .stated in the charge given at the trial that it is thought profitless to state them more fully in this opinion than has already been done, and the law as stated by the court meets our full approval, where this language is used:

“It is the law that one who causés work to be done is liable for injuries that result from negligence and carelessness in its performance by the employees of an independent contractor'to whom he has let the work when the resulting injury, instead of being collateral and flowing from the negligence of the act of the employee alone, is one that might have been anticipated as a direct and probable consequence of the performance of the work contracted for, if reasonable care is omitted in the course of its performance. In such ease the person causing the work to be done will be liable for the negligence, even though of an employee of an independent contractor.
“In this case I-say to you, that the city of Lorain would be liable for the negligence of the defendant, Chapman, or his employees, if from such negligence damages proximately resulted to the plaintiff. If you find under the instructions I gave you, that damage might have been anticipated as a direct and probable consequence of the performance of the work contracted for, if reasonable care was omitted in the course of its performance, owing to the character of the work to be done, or instrumentalities to be used and the location where the work was to be done, I say to you as a matter of law, that a common duty rested upon both defendants in this case to use ordinary care, as above defined, during the progress of such sewer work in the use of explosives.
‘ ‘ If the defendant, Chapman, through his servants, was negligent as charged by the plaintiff in this case, then both the defendant Chapman and the city of Lorain, under the law applicable to this case, would be liable, if by reason of such negligence damage proximately resulted to the plaintiff. But if Chapman, through his servants, was not negligent under the instructions I have given you, then neither of the defendants would be liable in this action.”

We think this admirably stated the law and was wholly applicable to the case and we find no error in the charge of the court as given.

Certain requests made by Chapman were given to the jury before argument; others which were properly requested before argument, were refused. One refused, which is marked Request ‘.‘No. 2,” reads:

“The lack of knowledge on the part of the defendant, Thomas G. Chapman, of the location of the high pressure main, is a defense to said action even though the city had actual or constructive notice of the location of said main.”

This request was properly refused for at least two reasons. If it had been given exactly as written, it would have been, m effect, saying to the jury that there could be no recovery on the part of the plaintiff against either defendant. Of course what was meant by the request was that it was a defense to the action as against Chapman. The language, however, is that it is a defense to said action, and if it was a defense to the action, a complete defense, then no recovery could have been had. This by itself would have justified the refusal to give the request without modification, but there is another reason, and that is, that a part of the duty of the defendant Chapman was to exercise at least reasonable care to know what the surroundings of the place were where the explosive was to be used. If this request had been given, then Chapman would have been relieved even though he failed to exercise ordinary care to know whether there was a gas main near to the place where the explosive was used.

Another request made by Chapman reads:

“If the jury find that the negligence of the plaintiff in any degree proximately contributed, to the injuries complained of to his person and pi’operty, as set out in his amended petition, then your verdict must be for the defendants, even though you should as a matter of fact find the defendants had been guilty of gross negligence.”

This request was properly refused. To have given this might have relieved the defendants of the result of the grossest negligence, even of willful negligence, where the negligence of Lepotsky was barely appreciable. On this proposition see Cooley on Torts, page 810, where he says:

“Where the conduct of the defendant is wanton and willful, or where it indicates that degree of indifference to the rights of others which may be justly criticized as recklessness, the doctrine of contributory negligence has no place whatever, and the defendant is responsible for the injury he inflicts, irrespective of the fault which placed the plaintiff in the way of such injury. ”

Also Beach on Contributory Negligence, Section 64, quoted with approval in the ease of Krause et al v. Morgan, 53 O. S., at page 37. The quotation is in these words:

‘ ‘ In order to constitute contributory negligence on the part of the plaintiff, there must be negligence on the part of the defendant. It is accordingly the well settled rule, that when the defendant’s conduct amounts to willfulness, and when the mischief is occasioned by his intention and wanton wrongdoing, the plaintiff’s negligence is no defense.’’

The term “gross negligence” is scarcely susceptible of legal definition, say our Supreme Court in the case of Griffith v. Zipperwick, 28 O. S., 388.

In the ease of Railroad Co. v. Kelley, 12 O. C. C., 341, affirmed in 53 O. S., 667, it is said:

“Where the crew of a railroad train receive notice of an impending danger and have the ability to stop the train and avoid the danger, they must do so, and failing to do this, they are guilty of gross negligence amounting to willfulness.”

Attention is called to this case upon the proposition that “gross negligence,” though it may exist without willful negligence, still includes willful negligence. So that to say that the defendants would not be liable even though their negligence was gross, would relieve the defendants from responsibility if that gross negligence were willful. This was sufficient reason for refusing to give the charge as requested.

In the case of Schweinfurth v. Railroad Co., 60 O. S., 215, it is said in the syllabus:

“In an action for negligence, it is not error to refuse an instruction that the defendant ean not be held liable, though guilty of the negligence charged, if the negligence of the person injured contributed in any degree, or in any way, to the injury of which he complains. Unless the negligence, of the person injured contributed directly to, or was a proximate cause of the .injury, it does not preclude a recovery.”

The charge requested in this case, it is true, used the word “proximately” as qualifying the word “contributed,”-but we think that the reasoning of- the case last mentioned would justify a refusal on the part of the court to give the charge requested.

Another request of Chapman which was refused, is number 11. Without stopping to quote this, we justify the refusal to give it. If this 'had 'been given it would have relieved Chapman of any obligation to use ordinary care to ascertain what the surroundings were at the place where he was to explode dynalite, unless he had direct instructions from the city of Lorain as to the location of the gas main in Pearl avenue. Clearly this takes from him an obligation which lie owed to every one liable to he injured by the explosion, which could have been avoided by the use of ordinary care on his part in ascertaining the surroundings.

The city also made a request for propositions to be given be-, fore argument, some of which were refused. The first was refused, it being a charge that the city was not liable and could not be held in the action. This was properly refused.

The'second is practically the samé:

The third was properly refused, because it' undertook to limit the meaning of the word “rock’’ as used in the contract, and because it relieved the city, from all liability in a ease where, by its contract, with Chapman, it had permitted him to make use of this highly explosive material.

For like reason the fourth .was properly refused.

The court refused to give request No. 6, which reads:

“The jury can, if the evidence warrants it, find a verdict against the defendant, Chapman, and not against the defendant, the city of Lorain.” .

We think this was properly refused; in any event, that under the facts in the ease it worked no prejudice to the city, hut we think it was properly refused, because no verdict could have been returned against Chapman unless there was negligence on his part in the use of this explosive, and since he was, by his contract with the city, permitted to use the explosive, we think, if injury resulted to the. plaintiff from the negligent use of it in the prosecution of the work of the contractor, the city as well as the contractor would he liable.

The,court was asked by Chapman to submit to-the jury certain interrogatories. These wore not submitted, and the, failure to submit them is complained of and assigned as error. The first reads:

“Do you find, as a matter of fact, that the defendant, the city of Lorain, knew of the existence of the high-pressure gas main at the point in Pearl avenue, Lorain, Ohio, where said explosion occurred previous to said explosion?”

Whatever answer had been given to this question would not have determined what verdict should be rendered on the issues between the plaintiff and either of the defendants. If it had been answered in the affirmative, it would have tended to show that the city was liable, but it would not have tended to show that Chapman was not liable. If it had been answered in the negative, it would not necessarily result in relieving either of the defendants, because if, in the exercise of ordinary care, either the city or Chapman would have known of the location of this main, their liability would be the same as though the city actually knew.

The next two interrogatories are based upon whatever answer should be given to the first, and since nobody would be prejudiced by the refusal to submit the first, it follows that neither of the others should have been, or indeed could have been, submitted.

As to the fourth, the same reason which justified the court in refusing to submit the first justified it in refusing to submit the last.

The result is that we find no error in the record, and the judgment is affirmed.


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    VALIDITY OF A RESIGNATION BY A PUBLIC OFFICER.
    Circuit Court of Cuyahoga County.
    State of Ohio, on the Relation of Charles Orr, v. the Board of Education of the City of Cleveland District et al.

    Decided, July 2, 1912.

      Public Officers — Resignation from Office Need Not be in Any Particular Form — Accepted Resignation Can Not be Withdrawn.

    1. It is not necessary that a resignation from a public office be couched in .any.particular words; it is only necessary that the incumbent • ■ evince a purpose to relinquish the office; that this purpose be communicated to the proper authority; • and that this resignation- be accepted,. either in terms, or something- tanamount thereto. ■ .
    2, A resignation from office, to become effective at some.future time, can not be withdrawn without the consent of the accepting party.
    Niman, J.; Marvin, -J., and Metcalfe, J. (sitting in:place of Winch, J.), concur. . -
    On the 10th- day of December, 1910, the'relator was elected .director- of schools by the board of education of the city of Cleveland for a term of two years',' beginning January 11th, 3911. He duly qualified and entered upon the discharge of his duties. • ■ '

       Affirmed without opinion, State, ex rel, v. Board of Education, 87 Ohio State, 529.

   On the 16th day of January, 1912, he wrote and delivered to Dr. G-. O. Ashmun a communication which reads as follows ; ' •'

“January 16,1912.
“Dr. G-. C. Ashmun, Pres.?
“Board of Education.
“Referring to the present contention as to the office of director, it is my intention to retire from the work at an early date after confidence and quiet are restored. The limit of my services will be June 15, 1912.
‘ ‘ Very truly yours,
“Chas. Orr.”

When this writing was delivered to Dr. Ashmun and read by him, he put the question to Mr. Orr: “May I show this to the other members of the board?” The answer, as testified to by Mr. Orr, was: “Mate any use of it that you see fit. That is exactly my-view; that is my wish; that is my feeling.”

At a meeting of the board of education held on the afternoon of January 16, this communication ivas presented to the board. A discussion followed and Mr. Orr was called before the board. He was made aware of the fact that the letter he had addressed to Dr. Ashmun earlier in the day was before the board and was under consideration.

While the testimony given by the various witnesses as to what vas said by him 1o the board, and by the members of the board to him, is not without conflict, the fact is established that the intention of the director of schools, as expressed in his communication, then before the board, was discussed, and the -concluding paragraph of the communication was declared by him to mean that he intended to retire from the office of director by June 15, 3912.

The letter of January 36th was on motion made a part of the records of the meeting of the board of education. At the time this meeting of the board was held there was pending before the board a report of the committee on business management -relative to an investigation which had been requested by Mr. Orr, which dealt extensively with matters in the department of the director of schools and reported against the request of the director for an investigation of his office. The report concluded with a recommendation that the director be advised of the conclusions set forth in the repoi’t, and requested to tender his resignation.

Immediately following the consideration of the letter of January 16th and the discussion between the members of the boai'd and Mr. Orr, a resolution was adopted by the board approving the report of the committee on business management with the exception of the last paragraph, to-wit, “and be requested to tender his resignation.”

On May 20, 1932, the relator addressed a letter to the.president of the board of education, which said:

“Urged by a sense of duty, I withdraw my communication to von written under date of January 36th, 3912.”

This letter was presented to the board of education by the president, but the hoard declined to receive it and instructed the president to return it to the director of schools.

On May 27, 1912, the board of education adopted the following' resolution:

“Whereas, at a meeting of this board on January 16, 1912, Mr. Chas. Orr, director of schools, filed with the hoard a written communication terminating his services as director on June 15th, 1912, and which communication was accepted by the board at that time and became the basis for its action in amending and adopting a report then pending from the committee on business management, therefore, he it
“Resolved: That the committee on business management be and hereby it is requested to consider and report at the next regular meeting of the board what action in the opinion of the committee, the hoard should take in regard to the situation thus created.”

Following this, on the 3d day of June, 1912, the board passed a. resolution adopting a report of said committee on business management which recommended that the hoard proceed to elect a director of schools for the unexpired term and which expressed the opinion that a vacancy would exist in the office of director of schools from and after the 15th day of June, 1912.

On June 3d, 1912, the hoard adopted another resolution declaring its determination to elect a school director to fill the vacancy declared to exist for the unexpired term beginning June 16, 1912, and ending January 10, 1913.

Following the adoption of die resolution, the director of schools addressed a letter to the board of education, the closing paragraph of which reads:

“That there may be no misunderstanding either to the effect of my letter of January 16th, 1912, or of my present intention, you are hereby notified that I do not intend to resign my office as director of schools on June 15th, 1912, or at any other time: that I intend to serve for the full period of my election, and that insofar as my letter of January 16th last to your president could or might he construed as a resignation on my pari, it is hereby withdrawn. ”

The board refused to accept this communication, and on the 7th day of June, 1912, proceeded to elect Frank O. Hogan as director of schools to fill the vacancy theretofore declared by it to exist in that office.

By this action the relator seeks a writ of mandamus against the board of education and the' members thereof,' to compel them to restore him to the office of director of schools of the city school district of Cleveland and to recognize him as the lawful school director of said school district, notwithstanding any finding or claim of said board or its members that he has heretofore resigned from said office.

It was held in State, ex rel Moyer, v. Baldwin, 77 O. S., 533, that “mandamus is the proper remedy to restore a party to the possession of an office from which he has been illegally removed.” •If, therefore, the relator’s contention that he has been illegally removed from his office is sound, he has ehosen the proper form of action to secure restoration to. that office.

To decide the relator’s right to the relief sought requires a determination first, of the question whether the communication of June 16th, which the board of education treated as a resignation by the director of schools, was in fact a resignation.

The authorities are uniform to the effect that, in the absence of statutory requirement, no particular form of resignation is necessary. It need not be in writing and no special words are required. In the language of Macfarlane, J., in State, ex rel Kirtley, v. Augustine, 113 Mo., 25:

“It is only necessary that the incumbent evince a purpose to relinquish the office; that this purpose be communicated to the pi’oper authority, and that this resignation be accepted, either in terms, or something tantamount thereto, such as appointing a successor,” etc.

When the director of schools wrote the letter of January 16th to the president of the board stating that it was his intention to retire from the work at an early date after confidence and quiet were restored, and setting the limit of his service as June 15, 1912, he clearly evinced a purpose to relinquish his office. By his consent the letter was presented to the board, although addressed only to the president. Thai body was justified by the language of the communication in treating it as a resignation to take effect not later than June 15, 3912.

Having reached the conclusion that the letter of January 16th was in legal effect a resignation, we are under the necessity of determining whether it was accepted by the board of education before the date of Mr. Orr’s letter of May 20, 1912, addressed to Dr. Ashmun, president of the board of education, in which he says:

“Urged by á sense of duty, [ withdraw my communication io you written under date of January 16, 1912.”

It is contended by the defendants that no acceptance of the xesignation was necessary, and we are cited to the ease of Reiter v. State of Ohio, ex rel, 51 O. S., 74, where it was held:

"By the rules of the common law, a resignation of an office does not take effect so as to create a vacancy, until such resignation is accepted by the proper authority; but the common law in this regard is not in force in this state, to its full extent, and here a resignation without acceptance creates a vacancy, to the extent at least of giving jurisdiction to appoint or elect, a successor, unless otherwise provided by statute.”

In our opinion this case does not go to the extent of holding that a resignation to take effect in the future may not be withdrawn before it has been accepted. Tt is not necessary, however, to the decision of the case before us to determine that question, because on the facts we find that the board of education took such action at the meeting on January 16th as amounted to an acceptance of the director’s resignation.

An acceptance of a resignation need not be indicated in any particular manner. It may be formally accepted or accepted by implication.

Thus in Gates v. Delaware Co., 12 Ia., 405, it was held:

"The tendering of a resignation of a public office, in writing, to the officer authorized by law to receive it, and the filing of the same without objection by such officer, operates to vacate the office resigned according to the terms of such resignation.”

In Pace v. The People, ex rel, 50 Ill., 432, the syllabus, paragraph 1, reads as follows:.

“A county superintendent of schools addressed and presented to the county court of his county a paper as follows: ‘ The undersigned hereby tenders his resignation as county superintendent of schools.’ This paper was received by the court and handed to their clerk to be placed on the files of the court, and was by him so filed. This was a virtual acceptance of the resignation, which was not subject to be revoked by the party presenting it. It was .not necessary to enter an. order upon the records accepting the resignation in form.”

The board of education made the communication a part of its records. Its receipt was made the basis of dropping from the report of the committee on business management that part of the report recommending that the resignation of the director of schools be requested. The action of the board with respect to this communication, indicated an acceptance of the director’s resignation as effectually as though a formal resolution of acceptance had been adopted. '

Having reached the conclusion that the resignation of the director of schools was accepted before any attempted withdrawal of the same was made, there remains but one other question to be decided in this action, and that is whether, after acceptance by the board of education, it could still be withdrawn by the director and the effect of its acceptance avoided.

On this subject the law is stated in 23 Am. & Eng. Encyc. of Law. (Second Edition), p. 424, in the following language:

"An unconditional resignation to take effect immediately can not be withdrawn even with the consent of the power authorized to accept it, and it does not seem to be material that the resignation had not been accepted. A contingent or a prospective resignation, however, can be withdrawn at any time before it is accepted, and after it is accepted it seems that it may be withdrawn witn the consent of the authority accepting where no rights have intervened.”

Here, of course, the consent of the accepting authority to the withdrawal of the resignation is lacking and the attempted withdrawal was without legal effect.

It follows from the conclusions announced that the writ of mandamus prayed for by the relator must be denied and the. petition dismissed.


text:
    DAMAGES RESULTING FROM NEGLECT OF ATTORNEY.
    Circuit Court of Cuyahoga County.
    The Western & Southern Life Insurance Company v. Charles L. Selzer.
    Decided, July 2, 1912.

      Attorney and Client — Burden of Proving Damages in Action for Neglect of Attorney — Attorney Not Liable for Neglect to Pile Answer When Not Informed of the Defense to be Made-Attorney Can Not Recover for Service Where he Disregards Instructions.

    1. In an action brought by a client against his attorney for damages caused by neglect of the attorney to defend an action against the client, the burden, is upon the client to prove the extent of his damages, and before he will be entitled to anything more than nominal damages he must affirmatively show what defense he proposed to make and that it would have availed.
    2. If an attorney employed to defend a suit fails to do so, and as a result judgment is rendered against his client, before he can be made liable for the whole amount of the judgment thus recovered, he must have been informed by his client what was the nature of the defense he was expected to make. '
    S. Where an attorney has been directed to appeal a case to a higher court, but before the appeal had been perfected he was discharged, he is not liable in damages to his client for failure to file an appeal bond, if the time for filing the bond had not expired at the date he was discharged.
    4. When an attorney under specific instructions from a client appeals a case from a justice court to the court of common pleas and then consents to the entry of a judgment against his client, he can not recover for services rendered in the case.

      White, Johnson & Cannon, for plaintiff in error.

      Ong & Mansfield, contra.

      Marvin, J.; Niman, J., aud Metcalfe, J. (sitting in place of Wineli, J. ), concur.
    The parties stand in the reverse order from that occupied by them in the court of common pleas. The terms “plaintiff” and “defendant,” used in this opinion, refer to the parties as they were in the court below.
   The plaintiff is an attorney-at-law: he sued to recover compensation for services claimed to have been rendered by him to the defendant, which is a corporation, in his professional capacity.

The home office of the'defendant is in Cincinnati, Ohio. Some twelve or fifteen different suits were brought against it in the county of Cuyahoga, where plaintiff resides and was practicing his profession. He was employed by the defendant in each of these cases to defend.

It is claimed by the defendant, and the contention seems to be sustained, that as to each of these cases there was a separate employment, that is, the employment was not general, but in each ease he was employed for that particular case.

It is clear that in each ease the plaintiff rendered some service for the defendant, for which he would be entitled to recover but for the defense set up that he neglected his duty and failed to do the things that it was his duty to do under his employment. The defendant claims that there was such negligence in each ease, and it sets up -as a cross-petition that in a case brought by John F. Doreen and Elizabeth Doreen, the plaintiff failed to make any defense for the defendant; that by reason of such failure on the part of the plaintiff the said Doreens recovered a judgment against the defendant for $2,097 damages and $18.18 costs of suit, which it was obliged to pay, and so the defendant prays for judgment against the plaintiff for that amount.

On the trial the court took from the consideration of the jury all claim of the defendant under said cross-petition. The result of the trial was a verdict and judgment for plaintiff for the full amount of his claim.

All things necessary to be done to-bring the ease to this court for review on error were done, including a bill of exceptions containing all the evidence and the charge of the court.

One of the errors complained of is the action of the court in taking from the jury the consideration of the defendant’s cross-petition. The reply of the plaintiff to the answer contained also an answer to the cross-petition, and in such pleading it is alleged, and the allegation is fully sustained, by the evidence, that the plaintiff did file an answer to the petition filed against the defendant by the Doreens; that such answer was prepared, by the general counsel for the defendant in Cincinnati. The plaintiff was. acting for the defendant under the authority and direction of such general counsel.

This answer contains all the information, so far as appears, of any facts relied upon as a defense in such action. To this answer a demurrer was filed and after argument it was sustained, on the ground that the allegations of such answer constituted no defense to the petition.

So far as anything appears in the evidence, plaintiff had no knowledge that there were any other facts on which the defense could be based, and so judgment was taken in the ease against the defendant. He did not, however, prosecute error to this judgment, nor report the judgment until it was too late to prosecute such error. H'e had no direct instructions to prosecute error if the decision in the common pleas court should be adverse to his client. It was the judgment of plaintiff that error could not successfully be prosecuted but it is here urged on behalf of plaintiff in error that if there were failure to do all that should have been done in the case, the presumption arises that the defendant lost all that it was required to pay on the judgment taken against it, and that in the absence of evidence on the part of the plaintiff that no defense could have been made which would have defeated the claim of the Doreens, the defendant should have recovered the full amount claimed in its cross-petition.

In support of this contention our attention is called to the case of Grayson v. Wilkinson, 13 Miss., 268. The second paragraph of the syllabus in the ease reads:

“If an attorney be employed to defend a suit and fails to do so, he is liable to the party injured to the extent of damages actually suffered; if, however, the attorney can show that the defense lie was employed to make was not a good one, he would be liable at most only to nominal damages.”

In the opinion in the ease, at page 288, the court refers to the only other cases to which our attention is called on this question, and in so referring uses this language:

“The case of Godfrey v. Jay, 7 Bingham, 413. settles, this principle, that if an attorney is retained and suffers a judgment to go by default he is liable for damages, and it is for him to show that the party has suffered no actual damages. It is not for the plaintiff to show that he had a good defense; and the case cited from 2 Chit. R., 311, is to the same effect.”

The court, however, later on in the opinion uses this language:

"Comyn, in his treatise on Contracts, says that if an attorney is guilty of gross neglect, or conducts his business unskillfully, he is liable for any damages his client may sustain in consequence thereof. According to this rule the client would have to show what damages he had sustained. If the attorney employed to defend did fail to file a plea, that is a breach of contract and entitled the plaintiff to recover something; but if he wishes to recover damages to the amount of the judgment against him, then he must show that he has sustained damages to that amount.”

The court then calls attention to a ease referred to in 2 Comyn on Contracts, 384, Russell v. Palmer, where Lord Camden was reversed for misdirecting the jury to the effect that the measure of damages, where counsel failed to make a defense, was the amount of the recovery.

This case in Mississippi was decided in 1845 and does not decide the question as to who had the burden of showing the amount of damages in a case where the attorney fails to defend in a case where he is employed to defend. Authorities are quoted from, as already shown, some holding that the burden is on the attorney, some that it is on his employer; it- was not necessary to determine the question in that ease.

The English ease of Godfrey v. Jay, 7 Bingham, 413, was decided in 1831. That of Bourne v. Diggles et al, 2 Chitty, 311, was decided in 1814. These are the latest and indeed the only authorities cited to us by either party in the case on this point. We have, however, found later authorities. See Pennington’s Exec’rs v. Yell, 11 Ark., 212, decided in 1850, where it is said in the syllabus:

“Extent of damage resulting from attorney’s negligence must be affirmatively shown.”

In Fitch v. Scott, 3 Howard, 314, the first paragraph of the syllabus reads:

“To subject an attorney to an action by his client two things • are necessary to be done: Gross or unreasonable neglect or ignorance and consequent loss to his client,”

Without further examination of the authorities we are of the opinion that the contention of the plaintiff in error on the proposition that the burden of showing whether or not the defendant suffered loss by the negligence, if there was negligence, of the attorney in the case of Doreens against the defendant, was upon the plaintiff, and that the presumption was in favor of the defendant, is unsound. Before the defendant should recover more than nominal damages, if it could recover anything on its cross-petition, it must have affirmatively shown that the defense which it proposed to make would have availed. This it did not show. Indeed, so far as the question was litigated, the defense was found not to be tenable.

There is another proposition held in the case of Grayson v. Wilkinson, supra, which is found in the last clause of the syllabus, and reads:

“If an attorney be employed to defend a suit and fail to do so, by which judgment is rendered against his client, before he can be made liable for the whole amount of the judgment thus recovered it. seems that he must have been informed by his client what was the nature of the defense he was expected to make. ’ ’

Attention has already been called in this opinion to the fact that the only information given to the plaintiff here as to the defense which could be made in the Doreen case was contained in the answer, which was filed and which the court found to be insufficient. In the state of the proof, then, as the case stood when the court directed the jury to disregard the cross-petition, there could have been no recovery' upon it for more, in any event, than nominal damages. The recovery of such damages would have been of no avail to the defendant except on the question of costs. If there had been nothing in the suit except the cross-petition and the issues made on that, this question of costs would have been of some importance to the defendant, but as the jury found on the other issues against the defendant, costs were necessarily carried with the judgment entered on such finding of the jury, and therefore there was no- prejudice to the defendant in not submitting the question which, as the ease was determined by the jury, would háve been of no importance even on the question of costs. We reach the conclusion, then, as to. the cross-petition, that there was' no-error in the ruling of the court which would justify a reversal of the judgment.

After the judgment" was entered against the defendant in the Doreen ease, the plaintiff was employed by the defendant to file a petition in the court of common pleas and seek to have the judgment set aside. He rendered certain services in that regard, he filed such petition; the ease was tried in the court of common pleas and judgment rendered against the defendánt in that action. The plaintiff in this action, as attorney for the defendant in the other action, gave notice of appeal to the circuit court. No bond for such appeal was given. The plaintiff says that before the time had elapsed within 'which the bond could have been given, the defendant discharged him as attorney in the ease, and directed him to turn over the papers in the ease to another firm of attorneys. It is agreed that he received such an order and did turn over the papers to the other firm of attorneys. The plaintiff testified that this turning over of the papers in the case to the other firm was before the expiration of the time within which a bond for appeal could have been filed. A witness connected with the firm to whom the papers were turned over testified that they received the papers a day or two after the time expired within which such bond could have been filed.

The court charged the jury that if the plaintiff turned the ease over to the other counsel before the time limited for the filing of the bond, and notified such other counsel of the situation, then he would be entitled to recover for the services he rendered in this suit, but the court told the jury that any services he rendered which became necessary to be rendered because of his negligence in attending to the business of his client, he would not be entitled to recover for it. There was no error in this.

Without stopping to go over each item of error complained of, we reach the conclusion that except as to two of the items for which plaintiff was allowed to recover, there was no reversible error. Those two items refer to the cases of George Doniak v. The Western & Southern Life Insurance, Co. and tlie case of W. Bilkowski. In each of these cases the plaintiff was directed by a letter from the general counsel of the defendant to its business manager in Cleveland, who brought the letter to the plaintiff, to make a defense. The cases were originally brought before a justice of the peace. The plaintiff tried the cases for the defendant and lost in each case. Each case was then appealed to the court of common pleas; the plaintiff in each of those cases failed within the proper time to file his petition and the plaintiff in this action made a motion to the court in each case to have the judgment entered for the defendant. He was unsuccessful, and a petition in each case was filed and the plaintiff in this action, without consulting his client, the defendant, consented to the taking of a judgment in each of those cases.

He having been directed to make the defense and to defend the actions on appeal, indeed having himself perfected the appeals, it was his duty to have made the defense, or to have filed an answer setting up such defense, or he should have communicated with Ms client before consenting to a judgment in either of these cases. For each of these cases he charged $45; and his recovery includes these two items of $45 each, aggregating $90. with interest.

We think he should not have been permitted to recover on either of these items, and that unless he consents to remit from the judgment recovered by him the sum of $90 with whatever the interest on that sum would be for the time on which interest was allowed in the judgment, the case must be remanded to the court of common pleas. If such remittitur is made, judgment for the amount remaining after deducting such remittitur will be affirmed.