author: WILSON, J

text:
    STREET RAILWAYS — NEGLIGENCE—EVIDENCE—TRIAL.
    [Franklin (2nd) Circuit Court,
    February 20, 1905.]
    Dustin, Wilson and Sullivan, JJ.
    Columbus Ry. v. Patrick J. Connor.
    1. Manner in which Street Car is Equipped may be Shown, when.
    To support the claim that a street car was operated negligently, the manner in which the car is equipped may be shown in the examination in chief, for the purpose of determining the speed with which it could be run with safety to the public.
    2. Evidence as to Time within which Cars can be Stopped, Proper, when.
    It is competent to prove in chief by an expert witness, that other cars differently equipped could be stopped in a shorter distance and time than the car which ran over plaintiff, in order to demonstrate that the latter could not be safely run at as high a rate of speed as other cars better equipped; and on cross-examination, evidence of the same character is competent for the purpose of testing the expert knowledge of the witness.
    3. Evidence that other Cars were Better Equipped, Incompetent.
    Evidence that other cars on the same and other lines, better equipped than the car which ran over plaintiff, were in common use, is incompetent, when the defective equipment is not the negligence complained of.
    4. Expert must have Knowledge on Particular Subject.
    A witness cannot testify as an expert as to the time and distance within which a particular street car could be stopped, when it is not shown that he had any experience with, or made any observation of the car in question, or one similarly equipped.
    5. Request for Instruction which Misstates Pleadings Properly Refused.
    A request that a certain charge be given the jury is properly refused when it misstates the pleadings.
    6. Rule of Care Applicable to Infant must be Given to Jury.
    In an action by an infant against a street car company to recover for injuries suffered from being run over by a street car, a charge to the jury which defines the rule of care applicable to an ordinary prudent person, without referring to the infancy of the plaintiff, is properly refused.
    7. Court should Give or Refuse Requests for Instructions without Comment.
    The proper practice is for the court to give or refuse special requests for instructions without qualification or comment. But where the court, after commenting on a charge which he refused to give, instructs the jury to disregard his comment, the error is cured.
    8. Whai Sufficient Plea of Contributory Negligence.
    In an action for damages claimed to have resulted by reason of the negligent operation of a street car, an allegation in the answer, that “the plaintiff was negligent and therefore the defendant denies all right or claim of damages on the part of the plaintiff against it, by reason of the allegations contained in the amended petition,” is in effect a plea of contributory negligence on the part of plaintiff.
    9. Charge Defining Contributory Negligence Misleading, when.
    A charge that “contributory negligence only ceases to be a defense if defendant could have avoided the injury by ordinary care,”' is misleading and prejudicial; it should have been qualified by adding some such words as, “after the negligence of plaintiff had intervened.”
    10. Speed Ordinance Construed
    Where an ordinance does not fix a uniform rate of speed applicable at ail times and places, but provides that it shall not exceed fourteen miles per hour including stops, it is permissible to run a part of the time at a speed greater than fourteen miles an hour, in order to make up the time lost in stopping; and the proper construction of such ordinance is, that it regulates the speed only to the extent that at the end of the run the car must not have exceeded the average of fourteen miles per hour.
    11. Excessive Speed not Necessarily Negligence.
    Whether the speed is excessive under such an ordinance depends in some degree upon the conditions affecting the public safety at the particular time and place in question. The mere fact that the speed exceeded fourteen miles per hour is not conclusive on the question of negligence, even though the speed of the car was the .proximate cause of the injury. The proximate cause is not necessarily negligence.
    ,12. Motobman Bound to see Pedestrian, when.
    • A charge to the jury, in effect, that the motorman of a street car should have seen plaintiff on the track, if in the exercise of ordinary care he could have seen him in time to prevent the injury, may be proper owing to the circumstances.
    13. Charge Requiring Street Cabs to come up to Certain Standard, Misleading, when.'
    In an action by a street pedestrian against a street car company to recover for injuries caused by the negligent operation of a street car, a charge to the jury which implies that the cars of a street railway company should at least come up to the standard of such as hre in common use, and that the fender be the best that could be procured, is confusing and misleading because it too nearly defines the duty of the company as a common carrier to its passengers, instead of to pedestrians.
    14. Infant over Fourteen Presumed to be Sui Juris, when.
    An infant over fourteen years of age is presumed to be sui juris in the sense that he is chargeable with negligence, but the measure of his capacity in that regard is a question for the jury.
    15. No Fair Trial when Jury ’Views Case through Passion Excited by Counsel.
    A party cannot be said to have had a fair trial when the jury is required to view the case through an atmosphere of passion and prejudice, excited by the conduct of counsel. The fact of provocation, or that opposing counsel was also guilty of the same conduct, does not change this conclusion.
    16. Charge of Unprofessional Conduct should not be Made in Trial of Case.
    A charge of unprofessional conduct against opposing counsel should not be made in the trial of a case, but in a proceeding specially instituted to inquire into the truth of the charge.
    Error to Franklin common pleas court.
    Booth, Keating & Peters, for plaintiff in error.
    J. J. Lentz and L. G. Addison, for defendant in error.
   WILSON, J

This a proceeding in error to reverse a judgment below in the sum of $9,000, for personal injuries claimed to have been caused by the negligence of the plaintiff in error.

The issues were made by the amended petition, the amended answer thereto, and the reply which are filed as original papers in this court.

The amended petition charged that the accident, which resulted in the loss of a leg below the knee, was caused by the negligence of the defendant in the following particulars:

1. That no warning or signal was given of the car’s approach, when, contrary to a custom known to the plaintiff below, it was proceeding north on the west one of the two tracks on Fourth street immediately south of First avenue in the city of Columbus, Ohio.

2. That the car was run at a dangerous and excessive speed which was in violation of the speed ordinance of the city.

3. That the defendant made no effort to stop the car after the motorman saw the plaintiff in a perilous position,- or by the exercise of ordinary care could have seen him.

4. That the fender on the car was out of order, and would not work automatically, contrary to, and in violation of an ordinance of the city.

The defendant’s first defense to the amended petition was in nature of a general denial.

A second defense was pleaded in the following language:

“The plaintiff at the time he received the injuries stated in the amended petition and immediately prior thereto, was guilty of negligence and want of ordinary and proper care on his part, which directly caused his said injuries, as follows, to wit:
“That he negligently and carelessly went upon said west track immediately in front of said moving and approaching car, and negligently and carelessly remained on said trank and failed to leave the same before he was struck by said ear, although he saw and heard said moving ear approaching him, or by the exercise of ordinary care he could have seen and heard said moving car approaching him, and by the exercise of ordinary care, he had ample time to have left said track before said moving car reached him, and thereby entirely escape from injury therefrom ; and so the defendant denies all right or claim of damages on the part of the plaintiff against it by reason of the allegations contained in the petition.”

The plaintiff replied denying the charges of negligence made against him.

■ After the trial was had and verdict rendered a motion for a new trial was interposed, overruled, and judgment entered upon the verdict.

The contention of the plaintiff in error is that there was error:

1. In the admission of incompetent, irrelevant and immaterial testimony offered by the plaintiff below.

2. In the exclusion of competent, relevant and material testimony offered by the defendant below.

3. In the refusal to instruct the jury as requested by the defendant before argument.

4. In the comments of the court made in the presence of the jury in the way of reasons for the refusal to so instruct the jury.

5. In the refusal to instruct the jury as requested by the defendant after argument.

6. In the instructions given to the jury after argument.

7. Misconduct of counsel for the plaintiff below.

8. Because the verdict was against the manifest weight of the evidence and excessive in amount and contrary to law.

Of these in their order:

(1) The objection goes in a general way to the evidence admitted for the purpose of proving how other cars on the same and other lines were better and differently equipped, and to the purpose for which, under the ruling of the court it was admitted; and in particular, to the expert opinion of the witness, Claude M. Collins, as to the time in which the car which caused the injury could have been stopped.

It was competent to prove in chief in what manner the car in question was equipped for the purpose of determining the speed with which it could be run with safety to the public — that being determined by the distance and time within which it could be stopped, depending upon the equipment.

It was also competent to prove by a witness qualified to testify as an expert that other cars differently equipped could be stopped in a shorter distance and time, in order to demonstrate that this car could not be safely run at as high a rate of speed as others better equipped. On cross-examination evidence of this character was admissible for the further purpose of testing the expert knowledge of a witness.

But it was not competent, under the charges of negligence in the amended petition to admit testimony as was permitted by the trial court for the purpose of showing that other cars on the same or other lines, better equipped were in common use. That fact could not throw any light upon the question whether or not the defendant had been negligent in the operation of this particular car. It only reflected upon the right of the company to use the car at all, and that right was not challenged in the petition, except as to the fender. It opened up a wide field for investigation to which the attention of the defendant was not called in the pleadings and which it had no reason to anticipate.

It was prejudicial to admit evidence of this character for that purpose.

We are also of the opinion that the witness, Claude M. Collins, did not qualify as an expert to testify within what time and distance this particular ear as equipped could be stopped. It was not shown that he had ever had any experience with, or made any observations of, a car similarly equipped. Cars and appliances are so multiform, and so graded in efficiency that upon a question so vital in the case, the expert opinion should be based on knowledge of this or similar cars similarly equipped.

(2) We find no error in the exclusion of evidence.

(3) The defendant requested the court to charge the jury before argument as follows:

(a) In determining whether or not the defendant was negligent, and whether or not its alleged negligence was the cause of the plaintiff’s injuries, you are restricted, in considering and weighing the testimony, to the issues made by the pleadings. The pleadings which state the issues are the amended petition, the answer and the reply. The plaintiff is not entitled to a verdict against the defendant unless he has shown by a preponderance of all the evidence in the case that the defendant was negligent in one or more of the particulars stated in his amended petition, and that such negligence was the proximate cause of his injuries. Therefore, he is not entitled to a verdict on account of any defect in the car by which he was struck, if he did not allege such defect in his amended petition. He does not aver in his amended petition that there was any defect in the brake, the controller, or the device for cutting off the current of electricity by which the car was propelled or any other part or appliance of said car except the fender.' He does not charge in his amended petition that the car was not equipped with a good and sufficient brake; nor does he charge that the brake was not in good condition. Therefore, he is not entitled to recover on account of the kind or condition of the brake used on that car;'nor is he entitled to recover on account of the kind or condition of the controller, or the device for shutting off the electric current, on that car.

(b) If you find from the evidence that the plaintiff on the occasion mentioned in the amended petition failed to exercise such care and prudence as persons of ordinary care and prudence are accustomed to exercise under the same or similar circumstances, and if you further find from the evidence that such failure on his part 'to use ordinary, care was the proximate cause of the injuries which he received, he was guilty of negligence which will prevent any recovery of damages by him in this action.

(e) If the plaintiff was walking east or northeast towards the track on which the car was approaching, and if he heard, or by the exercise of ordinary care and prudence could have heard, the car approaching, either the sounding of the gong or the noise of the moving ear, it was his duty to look and see what track it was on, and if he failed so to do he is not entitled to recover in this case, unless you find from the evidence that the motorman on the car knew, or had reason to believe, that the plaintiff, notwithstanding the noise of the ear, or the sounding of the gong — if you find that it was sounded — was about to step on the track in front of the car, and did not, upon diséovering the plaintiff’s peril, use ordinary care to prevent injuring him. It was the duty of the plaintiff to look both ways for the approach of cars on the, west track before stepping on the same, whether, before doing so, he was walking’ directly towards the track, or diagonally towards it, or parallel with it. If the plaintiff stepped on the track ahead of the car approaching from the south and started to walk north on that track, it was his duty, before stepping on the track to look both north and south for an approaching car, and if he continued walking north on the track, it was his duty from time to time to look behind him to discover whether or not a ear was approaching from that direction; and he was . not relieved of the duty to take such precaution by the fact that until shortly before the accident it was customary for north bound cars to run on the east track.

(d) If the motorman saw the plaintiff approach and enter upon the west track ahead of the car, and start to walk north between the rails of the west track, and thereupon sounded his gong so loudly and at such a distance from the plaintiff, that the plaintiff had sufficient time and opportunity to step off the west track and avoid danger, the motorman had the right to assume that he would do so, and, under such circumstances, it was not his duty to stop the ear unless the plaintiff did not appear to hear or heed the warning; and if the warning was given in time to prevent injuring the plaintiff if he had heeded it, and if the motorman did not know, or have reason to believe, that he would not heed it, until too late to prevent injuring the plaintiff, the motorman was not guilty of negligence in not attempting to stop the car as soon as he saw the plaintiff entering upon the west track.

The first request misstates the pleadings upon which the issues in the case arise. There were both an answer and an amended answer filed to the amended petition; the amended answer superseding the answer. The request refers to the answer only as together with the amended petition and reply making up the issues- Technically, therefore, it was not error to refuse the request.

The second request was properly refused for the reason it defines the rule of care applicable to the ordinarily prudent person, without reference to the infancy of the plaintiff.

Request three and four involve questions of fact which were referable to the jury.

(4) The proper practice is for the court to give or refuse the request without qualification or comment. While in the opinion of the court the reason given in the presence of the jury for the refusal of the first request was not sound, inasmuch as the court instructed the jury to disregard it, the error was harmless.

(5) and (6) Complaint is made that in its charge the court characterized the second defense as being that of contributory negligence only, while under the pleadings it should have been given a broader significance. The second defense in the answer is in effect a plea of contributory negligence. There is in it no denial of the alleged negligence of the defendant. That is contained in a separate defense. After alleging the negligence of the plaintiff which caused the injury, it says: “And so the defendant denies all right or claim of damages on the part of the plaintiff against it, by reason of the allegations contained in said amended petition.” That is, notwithstanding the negligence charged in the amended petition, the plaintiff by reason of his own negligence is not entitled to recover.

The court said in its charge:

“Contributory negligence only ceases to be a defense if defendant could have avoided the injury by ordinary care. ’ ’

There should have been added to this statement some such qualification as, “after the negligence of plaintiff had intervened.” This no doubt is what the court meant to charge, but the qualification was omitted and the statement in the context was misleading and prejudicial.

The plaintiff introduced in evidence the ordinance of the city regulating the speed of cars, and there was testimony tending to prove that the defendant had exceeded the limit. The court charged that, “Such fact alone would not be such negligence on the part of the defendant as to render it, liable for said injuries to plaintiff unless you further find that such was the proximate cause of said injuries.”

The ordinance does not fix a uniform rate of speed applicable to all times and places. It must “not exceed fourteen miles per hour including stops.” To reach the limit of the ordinance it is permissible to run a part of the time at a speed greater than fourteen miles per hour, in order to make up the time lost in stopping. The ordinance regulates the speed only to the extent that at the end of the run the car must not have exceeded the average of fourteen miles per hour. Whether the speed is excessive under the ordinance depends in some degree upon the conditions affecting the public safety at the particular time and place in question. It follows that whether the speed of the car at the given time and place was negligent, is always an open question, and that it exceeded fourteen miles per hour is not conclusive on the question of negligence, even though the speed of the car was the proximate cause of the injury. The proximate cause is not necessarily negligence. The charge was misleading and prejudicial.

It was not error to charge in effect that the motorman should have seen the plaintiff, if in the exercise of ordinary care he could have seen him in time to prevent the injury. Operating the car on the street at the time and place in question, the company had reason to anticipate the presence of the plaintiff on the track, and, therefore, owed him the duty to see, if in the use of ordinary care it could have seen him in time to avoid the collision. The rule in Erie Ry. v. McCormick, 69 Ohio St. 45 [68 N. E. Rep. 571] does not apply. In that case the company had the right to a clear track and had no reason to apprehend a collision with the defendant in error.

The court instructed the jury that, “A street railway company is bound to furnish and maintain safe cars and appliances, whether old or new, but the employment of the appliances which are in general and common use in cities of this country cannot be said to be negligent.” And also that, “If such fender was at that time the best appliance defendant could, after due investigation, then procure, the defendant would not be liable.” The measure of the duty of the company to the plaintiff in furnishing cars and appliances is ordinary care. In so far as the charge implies that the cars should be at least such as are in common use, and the fender the best that could be procured, it is confusing and misleading for, that it too nearly defines the duty of the company as a common carrier to its passengers, instead of to pedestrians. As to cars the court was not entitled, under the pleadings, to fix a standard and as to the fender the standard was too high. It should have been left to the jury to determine from the evidence what was ordinary care under the circumstances.

It was not error to charge, for the plaintiff in this case, the modified rule of ordinary care according to his years. There is a presumption of law that an infant' more than fourteen years of age is sui juris in the sense that he is chargeable with negligence, but the measure of his capacity in that regard is a question for the jury.

(7) A party cannot be said to have had a fair trial when the jury is required to view the case through an atmosphere of passion and prejudice, excited by the conduct of counsel. ‘From the opening statement to the close of the argument that was the condition in the trial of this cause in the court below, as is disclosed by the record. It would be difficult to find a case that more nearly approaches the ancient trial by battle. The zeal of counsel on behalf of their client, which, decorously exerted is always commendable, no doubt, will explain much of the hot blood and bad temper that abound, but the modern standard of decorum and fair argument was flagrantly violated. "Whenever there is violent contention between counsel, the jurors are led to take sides because it is human to do so, the result being, that passion and prejudice find easy lodgment in their minds and vitiate their verdict. The instances of misconduct are too numerous for recital in this opinion.

Pages 79, 148 and 1142 of the record evidence, and the parts of the argument designated by the numbers 20, 24, 25 and 30 in the motion for a new trial may be referred to as characteristic violation of the rule. It is not a sufficient excuse to say that there was provocation, and that opposing counsel were guilty of the same offense. If theirs had been the verdict and that were found to be true, theirs would be the reversal. Charges of unprofessional conduct against opposing counsel should not be made in the trial of a cause, but in a proceeding instituted to inquire into the truth of the charges. They should never be made to influence the verdict of a jury, or the judgment of a court. There was prejudicial error in the conduct of counsel.

Except in so far as the foregoing particulars modify the trial " court’s view of the law of the case, we find no other error in the charge or refusal to charge.

"We find no other error on the record.

We are moved to say that the record in this case is unnecessarily large. It could be reduced to one-fourth of its present compass and still be certified to contain all the evidence. The cross-examinations are extended beyond purpose or reason.

The judgment is reversed and the cause remanded for a new trial.

Dustin and Sullivan, JJ., concur.


source: Caselaw Access Project

author: WALTERS, J.

license: Public Domain

text:
    MUNICIPAL CORPORATIONS — CONTRACTS—OFFICERS.
    [Franklin (2nd) Circuit Court,
    February 20, 1905.]
    Dustin, Walters and Sullivan, JJ.
    (Judge Walters of the Fourth Circuit sitting in place of Judge Wilson.)
    John M. Walcutt v. Columbus (City).
    1. Resolution of Council Creating Right not Effective until Approved by Mayor under Original Sec. 1545-91 (Repealed 96 O. L. 96; See Lan. R. L 3107; B. 1536-626).
    A resolution of a municipal council involving expenditure of money, or creating a right, cannot take effect, under original Sec. 1545-91 Rev. Stat. (repealed 96 O. L 96; see Lan. R. L. 3107; B. 1536-626), until it is presented, duly certified by the clerk, to the mayor for approval.
    2. Director of Law not Bound by Resolution not Approved under Original Sec. 1545-91 (Repealed 96 O. L. 96; See Lan. R. L. 3107; B. 1536-626).
    The director of law of a municipality is not hound by any direction to him contained in a resolution adopted by council, but which was not approved by the mayor as required by original Sec. 1545-91 (repealed 96 O. L. 96; see Lan. R. L. 3107; B. 1536-626), and where a motion for a judgment against the municipality is based upon such defective resolution, a duty devolves upon the director of law to notify the court of the invalidity of such acts upon which the request for judgment is predicated.
    3. Subsequent Legislation Applies to Prior Contracts, when.
    Where the contract out of which a claim against the municipality arose was entered into prior to the passage of the act requiring the mayor’s approval, and a dispute arises as to the amount due, the defendant asserting that nothing is due, and where as part consideration for the agreement of 'compromise, it was inserted therein “that as the case has already cost the city several thousand dollars in costs and attorneys’ fees, and if not settled is likely to cost many thousands of dollars more,” the plaintiff has no such vested right under his contract as forbids the application of the act, subsequently passed, requiring the mayor's approval.
    Error to Franklin common pleas court.
    E. P. Evans, G. H. Stewart, F. A. Davis and Cyrus Hulling, for plaintiff in error.
    J. M. Butler, for defendant in error.
   WALTERS, J.

The resolutions passed by. the city council April 13, 1903, and April 27, 1903, were of such character that they fall within the provisions of original Sec. 1545-91 (repealed 96 O. L. 96; see Lan. R. L. 3107; B. 1536-626), where it is provided that a resolution “involving an expenditure of money” or “creating a right” “shall, before it takes effect be presented, duly certified by the clerk, to the mayor of the city, for approval.”

These resolutions were not approved by the mayor, and therefore never took effect.

The director of law was not bound by any direction to him contained in those resolutions, nqr was the court below. It became and was the duty of the director of law, when the motion for judgment together with the resolutions, were presented to the court, to notify it of the invalidity of such acts upon which the request for judgment was predicated.

Where the contract, out of which the claim arose, was entered into prior to the passage of the act requiring the mayor’s approval, and a dispute arises as to the amount due, the defendant asserting that nothing is due, and where as part consideration for the agreement of compromise, it was inserted therein, ‘ ‘ That as the case had already cost the city of Columbus several thousand dollars in costs and attorneys’ fees, and if not settled is likely to cost many thousands of dollars more,” the. plaintiff has no such vested right under his contract, which forbids the application of the act, subsequently passed requiring the mayor’s approval.

Judgment affirmed.

Dustin and Sullivan, JJ., concur.


author: DUSTIN, J.

text:
    CONTRACTS — MASTER AND SERVANT.
    [Franklin (2nd) Circuit Court,
    November, 1904.]
    Dustin, Wilson and Sullivan, JJ.
    Robert S. Jennings v. George A. Bethel.
    Harsh and Unconscionable Contract between Employer and Employe not Enforced by Court of Equity, etc.
    A contract between an employer and employe whereby the employe is bound for a term of two years, but which only binds the employer for one week; which confers a discretion solely upon the employer 'as to the termination of the contract, and empowers him to discharge the employe without good cause, and for which the employe has no redress; and which prohibits the latter for eighteen months thereafter from engaging in a similar business, whether the employer continues in the business or not, is so harsh and unconscionable that it will not be enforced by a court of equity at the suit of the employer who seeks to enjoin the employe from engaging in the same business after his discharge without cause.
    Error to Franklin common pleas court.
    F. S. Monnett, for plaintiff in error:
    The contract, in question was void as against public policy, in that it required the employe, to conduct a lottery in connection with the introduction of the system or scheme, and as a part of said employe’s contractual duties under said contract. Section 6, Art. 15 Ohio Const.; Lan. R. L. 10571, 10572, 10573 (R. S. 6929, 6930, 6931) ; Jackson Steel Nail Go. y. Marks, 2 Circ. Dec. 584 (4 R. 343; Hooker v. DePalos, 28 Ohio St. 251; State y. Lark, 4 Dec. 241 (3 N. P. 155); Harper v. Grain, 36 Ohio St. 338 [38 Am. Rep. 589].
    Agreement attempting to disregard a statutory provision, is by all authorities, clearly illegal. Spurgeon v. McElwain, 6 Ohio 442 [27 Am. Dee. 266]; State v. Findley, 10 Ohio 51; Bloom v. Richards, 2 Ohio St. 387; Huber v. German Congregation, 16 Ohio St. 371; Delaware Co. (Comrs.) v. Andrews, 18 Ohio St. 49; Hooker v. DePalos, 28 Ohio St. 251; Leake, Contracts 723; Carter v. Lillie, 2 Circ. Dec. 204 (3 R. 364) ; Roll v. Raguet, 4 Ohio 400 [22 Am. Dec. 759]; Raguet v. Roll, 7 Ohio (pt. 1) 76; Raguet v. Roll, 7 Ohio (pt. 2) 70; McQuade v. Rosecrans, 36 .Ohio St. 442; Williams v. Englebrecht, 37 Ohio St. 383; Thomas v. Cronise, 16 Ohio 54; Veach v. Elliott, 1 Ohio St. 139; Ward v. Ritt, 6 Dec. Re. 1129 (10 Am. L. Ree. 567); Hafer v. Railway, 9 Dec. Re. 470 (14 Bull. 68) ; Broom’s Leg. Max., 694; Goudy v. Gebhart, 1 Ohio St. 262; State v. Buttles, 3 Ohio St. 309; Rogers v. Tucker, 7 Ohio St. 417; Trimble v. Doty, 16 Ohio St. 118; Robinson v.* Robinson, 17 Ohio St. 480; Allen v. Bank, 23 Ohio St. 97; Harper v. Crain, 36 Ohio St. 338 [38 Am. Rep. 589]; Kahn v. Walton, 46 Ohio St. 195 [20 N. E. Rep. 203]; Hershey v. Weiting, 50 Pa. St. 240; Wheeler v. Sage, 68 U. S. (1 Wall.) 518 [17 L. Ed. 646]; White v. Crew, 16 Ga. 416; Creath v. Sims, 46 U. S. (5 How.) 192, 207 [12 L. Ed. 110]; Wilson v. Bird, 28 N. J. Eq. 352; Medford v. Levy, 2 L. R. A. 368n; Pittman v. Pittman, 11 L. R. A. 458n.
    The contract is in restraint of trade. Lufkin Rule Co. v. Fringeli, 57 Ohio St. 596 [49 N. E. Rep. 1030]; Kevil v. Oil Co. 11 Dec. 114 (8 N. P. 311) ; Field Cordage Co. v. Cordage Co. 3 Circ. Dec. 613 (6 R. 615); Hoffman v. Brooks, 6 Dec. Re. 1215 (12 Am. L. Rec. 747; 11 Bull. 258) ; McBirney & Johnston White Lead Co. v. Lead Co. 8 Dec. Re. 762 (9 Bull. 310); Lange v. Werke, 2 Ohio St. 519; Thomas v. Miles, 3 Ohio St. 274; Central Ohio Salt Co. v. Guthrie, 35 Ohio St. 666.
    Lack of mutuality. Waterman, Spec. Perf. Sec. 196; Rutland Marble Co. v. Ripley, 77 U. S. (10 Wall.) 339 [19 L. Ed. 955]; Meason v. Kaine, 63 Pa. St. 335; Hughes v. Roth, 7 Circ. Dec. 441 (18 R. 804); Paragon Oil Co. v. Familton, 5 Dec. 219 (5 N. P. 23).
    Bachman & Bachman, for defendant in error.
   DUSTIN, J.

June 9, 1903, George A. Bethel, doing business under the name of the Merchant’s Premium Stamp Company, and Robert B. Jennings executed the following:

“Article or Agreement.
“This agreement, made and entered into this ninth day of June, 1903, by and between the Merchant’s Premium Stamp Company of Columbus, Ohio, party of the first part, and Robert D. Jennings of Columbus, Ohio, party of the second part,
“Witnesseth:
“That the party of the first part hereby agrees to employ said second party for the period of two years, commencing on June 9, 1903, to work for said The Merchant’s Premium Stamp Company, and to perform such duties as may be assigned to him or required of him by said party of the first part, for which services, said first party agrees to pay the sum of $20 per week, to said party of the second part, and also pay all the necessary expenses of said second party, which he shall expend for the benefit and welfare of said party of the first part. ’ ’
“In consideration of the above premises, the said second party hereby agrees that'he will faithfully perform the duties assigned to him by said first party, and work solely in the interest of said The Merchant’s Premium Stamp Company, in all matters relating to said employment, and to the best of his ability.”
“It is further agreed by the parties hereto, that said party of the first part shall increase the salary of said party of the second part, whenever, in the opinion of said first party, the work of said second party merits such increase, or when the increase of business of said company, due to the labor and efforts of said second party, merits the same. ”
“It is further agreed by and between the parties hereto, that said party of the first part, shall deduct from the salary and expenses of said second party, such proportion thereof, as corresponds to the time lost, by said party of the second part, without the fault of said party of the first part. ’ ’
“It is further agreed by the parties hereto, that said party of the first part has the right and privilege to terminate the employment of said party of the second part at any. time, if said party of the first part, ceases to do business, or if said business does not justify the further employment of said second party.”
“It is further agreed by and between the parties hereto, that said Robert D. Jennings, party of the second part shall not engage in, or work for, any other premium stamp company, or any discount, coupon, or premium stamp concern, in any one of the cities, counties or states named as follows: Ohio, Indiana and Kentucky; and where said party of the first part is now or hereafter shall be engaged in business, for the period of eighteen months after the employment of said party of the second, part, by said party of the first part shall, for any reason whatsoever, cease.”
“In witness whereof, the said parties hereto, have signed their names, at Columbus, Ohio, this----day of June, 1903.
“Robt. B. Jennings.
“Merchant’s Premium Stamp Co.,
“Per G. A. Bethel, Manager.
“Signed,in presence of “Bess Jinks.”

October 30, 1903, Bethel filed a petition in the common pleas court of Franklin county, alleging that pursuant to the above agreement Jennings entered his employment on June 9 and continued until October 8, 1903, “when said employment ceased;” that “during said employment defendant, Jennings, was instructed in all matters concerning plaintiff’s said business, and became acquainted with most of plaintiff’s merchants.” Then follow allegations that Jennings has threatened to injure plaintiff’s business, and has in violation of his agreement engaged in the premium stamp business in Columbus, etc.

Upon this petition Bethel obtained a temporary restraining order restraining Jennings “from performing any act or acts to injure plaintiff’s business, and from engaging in, or working for, any premium stamp company or any discount, coupon or premium stamp concern within the state of Ohio, until the further order of this court.” Defendant demurred to the petition, but same was overruled.

A motion to dissolve said restraining order was then filed in behalf of Jennings, heard upon affidavits and a deposition of plaintiff, and overruled.

A motion for a new trial was also overruled, and the ease came to this court upon a petition in error to reverse the said judgment of the common pleas court.

In our opinion the contract above quoted, is so harsh, and unconscionable that it ought not to be enforced by a court of equity, in behalf of Bethel."

It undertakes to bind Jennings for two years, but does not bind Bethel for more than a week. The discretion as to the termination of the arrangement is wholly with'Bethel who may discharge Jennings without good cause (as is claimed in this case) and the latter not only has no redress, but is prohibited for eighteen months thereafter from engaging in a similar business — no matter whether Bethel continues in that business or not. Paragon Oil Co. v. Familton, 5 Dec. 219 (5 N. P. 23).

The petition does not allege any incompetence or unfaithfulness on the part of Jennings, nor any cessation of, or decrease in, the business, such as would render the further employment of Jennings unnecessary or unprofitable; nor any reason whatever for his discharge.

We think, therefore, that the court erred in overruling the demurrer to the petition, in overruling the motion to dissolve the restraining order, and in overruling the motion for a new trial.

The judgment of the common pleas court will therefore be reversed, and the restraining order dissolved.

Wilson and Sullivan, JJ., concur.


author: GIFFEN, J.

text:
    PRINCIPAL AND AGENT — EXPRESS COMPANIES — EVIDENCE —WAIVER,
    [Hamilton (1st) Circuit Court,
    February 11, 1905.]
    Jelke, Swing and Giffen, JJ.
    Adams Express Co. v. W. M. Gordon.
    1. Charge that Failure to Demand Original Receipt Waived Condition, Error,
    In a suit to recover from an express company for money lost in transit, it is error to charge tbe jury that failure on the part of-the company to demand the original receipt was a waiver of that condition, where no waiver had been pleaded.
    2, Reasonableness of Rule Requiring Production of Original Receipt is for the Jury.
    The reasonableness of a rule of an express company requiring that, in case of a claim being made for a package lost in transit, the original receipt must be produced within thirty days annexed to the notice of loss, is one for the jury to determine under all the circumstances of the case and proper instructions by the court. .
    Error to Hamilton common pleas court.
    J. R. Schindel and Maxwell & Ramsey, for plaintiff in error:
    The undisputed facts in this case establish that an agency existed for the receipt of express packages and the delivery to such agent discharged the carrier. Beattie v. Railway, 90 N. Y. 643; Tennessee River Transp. Co. v. Kavanaugh, 101 Ala. 1 [13 So. Bep. 283]; Barnett' v. Glwting, 3 Ind. App. 415 [29 N. E. Bep. 154]; Angle v. Railway, 9 Iowa 487.
    Validity of stipulation that claim should be presented within a certain tim.e. Southern Exp. Co. v. Hunnicutt, 54 Miss. 566 [28 Am. Rep. 385]; United States Exp. Go. v. Mams, 51 Ind. 127; Southern Exp. Co. v. Caldwell, 88 U. S. (21 Wall.) 264 [22 L. Ed. 556]; Sullivan v. Thompson, 99 Mass. 259.
    Evidence of what occurred in former similar transaction is admissible to prove condition or knowledge, intent or motive, but not negligence; and for tbe former purposes only after instruction by the court as to the limit of admissibility. Circleville {City) v. Sohn, 11 Circ. Dec. 193 (20 R. 368) ; Brewing Co. v. Bauer, 50 Ohio St. 560 [35 N. E. Rep. 55; 40 Am. St. Rep. 686]. See also, Ragsdale v. Railway, 69 S. C. 429 [48 S. E. Rep. 466].
    It is erroneous to give instructions to juries based on a state of facts which there is no evidence tending to prove. Blashfields, Instruc. to Juries Sec. 86; Locke v. Express, Wagon & Sleigh Go. 71 Mich. 263, 266 [39 N. W. Rep. 54] ; Farlow v. Camp Point {Town), 18(6 111. 256 [57 N. E. Rep. 781]; Slingerland v. Keyser, 127 Mich. 7 [86 N. W. Rep. 390]; Donald v. State, 11 Circ. Dec. 483 (21 R. 124).
    Upon the question of waiver. Iron Mountain Bank v. Armtsrong, 62 Mo. 70; Frederick v. Kinzer, 17 Neb. 366 [22 N. W. Rep. 770].
    E. M. Ballard, for defendant in error.
   GIFFEN, J.

This action was commenced to recover the value of a package containing $103 in money delivered to the express company at Chicago, Illinois, to be carried to Cincinnati and delivered to W. G. Howard.

The express company denies that it did not deliver the same, or that it was wholly lost to the plaintiff; and, as a second defense, pleads an agreement that it should in no event be liable for the loss of said .money unless claim therefor should be made in writing at its office in Chicago within thirty days from the date of this agreement in a statement to which said agreement should be annexed.

Plaintiff by reply avers that he notified the company in writing of the loss of said money within the thirty days, but does not deny the averment that said agreement was not annexed to the notice. It must be taken as true, therefore, that the agreement containing the condition was not annexed to the notice of claim when made.

The court charged the jury that the failure to demand the original receipt would be a waiver on the part of the express, company. We think this was error for the reason that no waiver was pleaded. Eureka Fire & Mar. Ins. Co. v. Baldwin, 62 Ohio St. 368 [57 N. E. Rep. 57].

This or like conditions in contracts with express companies has frequently been before the courts of other states, and its reasonableness doubted. But no such question was raised in this case, and if presented would be one for tbe jury to determine under all tbe circumstances and under proper instructions from the court.

The evidence shows that the package was received by a young lady in the office of Mr. Howard; that she had been accustomed to receive, without objection from Mr. Howard, deadhead packages containing rate sheets and other papers of no intrinsic value; but there is no testimony tending to prove that she had any actual or implied authority to receipt for packages of value. There was no error in admitting testimony concerning the refusal of this company to deliver a like package to one other than the consignee at a different time and in a different office, for the reason that the court limited it to the proof of a course of dealing between the parties.

That part of the charge on pages 32 and 33 of the bill of exceptions, where the court speaks of the company being misled by the habit or custom, is most favorable to the express company, and could not have been prejudicial.

For error in charging the jury that the failure to demand the original receipt would be a waiver when none was pleaded, the judgment will be reversed and cause remanded for new trial.

Jelke and Swing, JJ., concur.


author: WILSON, J.

text:
    DITCHES — ASSESSMENTS—CONSTITUTIONAL LAW-
    [Madison (2nd) Circuit Court,
    March 25, 1905.]
    Dustin, Wilson and Sullivan, JJ.
    Eugenia Crawford v. B. A. Taylor, Aud., et al.
    1. Extent on Ditch Improvement and Assessment Lent Largely to Judgment on Authorities in Charge.
    The extent of a ditch improvement and the consequent amount of the assessment to pay the cost thereof, must, to a great extent, he left to the judgment of the authorities who have the matter in charge; and a court of equity will, in such cases, he slow in restraining their action.
    2. Section 3 on Act 95 O. L. 155 (Lan. R. L. 7834; B. 4584-3), Unconstitutional.
    Section 3 of the act 95 O. L. 155 (Lan. R, L. 7834; B. 4584-3), providing for the cleaning out of ditches, is unconstitutional, because it is administrative, and not legislative, in character, in that the “necessity” for the improvement is determined by the 'legislature, no provision being made in said act for determining such question by any authorized officer or board. Said section is also unconstitutional because it unjustly discriminates between different applicants for such improvement with respect to costs.
    Appeal from Madison common pleas court.
    Michael Murray, for plaintiff.
    T. J. Duncan, for defendant.
   WILSON, J.

This is an action brought to enjoin the assessment made by the auditor under favor of Sec. 3 of the act found in 95 O. L. 155, Lan. R. L. 7834 (B. 4584-3), for cleaning out what is known as the Pfifer county ditch, and comes into this court on appeal.

If the law under which it is sought to lay the assessment should be held constitutional we would not grant the relief prayed for upon the facts disclosed in the evidence. The extent of the improvement and the consequent amount of the assessment must, in the nature of things, be left largely to the judgment of the authorities who are upon the ground and act with better information than a court can obtain from cold type and oral evidence. The equity powers of the court should be slow to move under such circumstances.

But we have not been, able to reconcile our views of the law with the constitutionality of the statute under which it is sought to make the improvement. It is obvious, we think, that the provisions of Sec. 3 of the statute under review do not refer the question of the necessity for cleaning out, to any officer or board of the county. It is said by counsel in argument that “the necessity” is implied as a prerequisite to invoking the operation of the law, the language being, “Provided, however, that when a ditch needs to be cleaned out,” etc. But this language is the same as that of Sec. 2 of said act (Lan. R. L. 7833; B. 4584-2) wherein it is provided that the commissioners shall determine the necessity before the improvement is ordered, and nothing was left to be implied in that section.

Again it is argued the county surveyor is authorized to determine the necessity, because he is ordered “to examine the ditch.” His duties are similarly expressed in Sec. 4 of said act (Lan. R. L. 7835; R. S. 4584-4) when he _is proceeding in pursuance to the provisions of Sec. 2 to carry out the order of the commissioners after they have determined the necessity. There is nothing in the language of Sec. 3 to inform him that his authority is different or greater than it is under the other sections, and he would look upon the necessity as predetermined and act accordingly.

Nor can it be inferred that thé auditor has power to determine the necessity for the improvement under the authority to pass upon the surveyor’s report of the apportionment of the assessment and make such changes therein as he may deem right and proper.

The apportionment of the assessment and not the necessity for the improvement is the matter he considers. Here again it is assumed that “the necessity” is predetermined. The authority to make changes and approve does not imply the power to annul the assessment. When an officer’s power is purely statutory the courts will be slow to raise it by implication.

It would be a forced construction to say that the power to determine the necessity is to be inferred from the language in Sec. 3 when it is clearly expressed as otherwise bestowed in the sections immediately preceding and following in the same act.

In our opinion the necessity for cleaning out is determined by tue legislature to be whenever any resident landowner of any tract of land which was assessed for the construction may make a sworn statement to the county auditor in writing setting forth the necessity. It is a mandatory improvement act which does not submit the question of the public necessity to any authorized public board or officer. Such an act is administrative, not legislative, in its character and unconstitutional because not within the province of the legislature.

. It is apparent also that the remedy provided in Sec. 3 is materially different from that provided to the same, end in Sees. 2 and 4 of the act. Under the last named sections the applicant for relief is required to give bond to secure the costs and to have the board of county commissioners find the improvement necessary. In the event the board does not so find, he is adjudged to pay the costs. No such requirements» are made of the applicant under See. 3. The distinction is not made to depend upon residence as a reason for classification. A resident landowner may apply under either section. A nonresident may not apply under Sec. 3, but whether the resident landowner applies under the one or the other must depend largely upon his scrupulosity. If he is willing to make oath that it is necessary and invoke the power to assess his neighbors upon his own information and judgment he may have the ditch cleaned out under Sec. 3. If he has scruples about making the sworn statement and desires to have the county commissioners investigate and pass upon the question affecting himself and others he must make application under Sec. 2 and as a penalty for his modesty secure the costs. This would appear to be unequal legislation, an unjust discrimination against the fair minded citizen and violative of the bill of rights. /

So much of the statute as is included in Sec. 3 of the act is held to be unconstitutional and void, and the proceeding to levy an assessment under its provisions will be enjoined. A decree may be entered accordingly, the plaintiff to recover her costs.

Dustin and Sullivan, JJ., concur.


text:
    CHARGE TO JURY — RAILROADS—STREETS.
    [Franklin (2nd) Circuit Court,
    March 25, 1905.]
    Dustin, Walters and Sullivan, JJ.
    (Judge Walters of the Fourth Circuit sitting in place of Judge Wilson.)
    Cleveland, C. C. & St. L. Ry. v. Carrie L. Sivey.
    1. Requiring Jury to be “Satisfied” on any Question is Erroneous.
    A charge to the jury in a civil action which requires the jury to be “satisfied” upon any question in issue, is erroneous.
    2. Failure to Repair Cong at Public Crossing not Negligence, when.
    Where the placing of a gong at a public crossing to warn travelers of the approach of trains, was not required by statute, or an order of the railway commissioner, a positive charge to the jury, in an action against the company, that the failure of the company to keep in repair the gong which it had placed at the crossing was negligence, is erroneous. It was proper only to consider the condition of the gong with reference to the company’s duty to exercise ordinary care under all the circumstances.
    8. Charge Inferring that Country Highway was a Street is Erroneous.
    Where the evidence indisputably shows that the crossing where the accident, which is the basis of an action for negligence against a railroad company, happened, is located outside of a municipal corporation, a charge to the jury which implies that the highway was a city street, anti not'a country road, and thereby not governed by the same rules of law as the latter, is erroneous.
    4. Intervening Objects Breaking Sound, etc., Proper Subjects of Inquiry in Determining whether Traveler was Negligent in Approaching Crossing, etc.
    The difficulty of hearing a train approaching a public crossing by reason of intervening objects calculated to break the sound, and the noise of decedent’s wagon on the paved street, are proper subjects to be considered by the jury as bearing upon the question whether or not decedent, in the exercise of ordinary care, should have stopped to listen.
    5. Ordinary Care must be Exercised by Traveler although Railroad Company Negligent at Crossing.
    ¡The failure of a railroad company to keep a gong at a public crossing in repair so as to give warning of approaching trains, does not of itself, in all cases, relieve the traveler from exercising ordinary care at the crossing.
    6. Instructing Jury that Special Findings must be Consistent with General Verdict, etc., Erroneous.
    An instruction warning the jury that its special findings of fact must be consistent with the general verdict, or the latter would be set aside, is improper.
    ■ Error to Franklin common pleas court.
    J. F. Wilson, for plaintiff in error:
    "Weight of the evidence, upon question of negligence. Lake Shore & M. S. By. v. Jokers, 5 Cire. Dec. 599 (12 B. 499); Abbott, Trial Ev. (2 ed.) 736; Cleveland Provision Co. v.- Limmermaier, 4 Circ. Dec. 240 (8 R. 701); Columbia & P. S. By. v. Hawthorne, 144 U. S. 202 [12 Sup. Ct. Rep. 591; 36 L. Ed. 405] ; New York, C. & St. L. By. v. Eistler, 66 Ohio St. 326 [64 N. E. Rep. 130]; Erben v. Lorrillard, 19 N. Y. 299; Henkle v. McClure, 32 Ohio St. 202; Lake Shore & M. S. By. v. Gaffney, 6 Circ. Dee. 94 (9 R. 32).
    To preclude a right to recover, direct testimony of failure to look or listen was not necessary. The circumstances were conclusive of decedent’s negligence. Balt. & O. By. v. McClellan, 69 Ohio St. 142 [68 N. E. Rep. 816] ; New York, C. & St. L. By. v. Eistler, 66 Ohio St. 326 [64 N. E. Rep. 130]; Pennsylvania Co. v. Bathgeb, 32 Ohio St. 66; Clev. C. C. & Ind.'By. v. Elliott, 28 Ohio St. 340; Belief ontaine By. v.Snyder, 24 Ohio St. 670; Norfolk & W. By. v. Tea Co. 26 O. C. C. 547; Lake Shore & M. S. By. v. Beynolds, 13-23 O. C. C. 199; P. C. & St. L. By. v. Peters, 1 Circ. Dec. 20 (1 R. 34); Barr v. Chapman, 11 Dec. Re. 862 (30 Bull. 264); Fenger v. Fenger, 8 Dec. Re. 407 (7 Bull. 304) ; Conkling v. Bailway, 63 N. J. Law 338 [43 Atl. Rep. 666]; Pennsylvania By. v. Bighter, 42 N. J. Law (13 Yroom) 180; Bunyon v. Bailway, 25 N. J. Law (1 Dutch.) 556; Gorton v. Bailway, 45 N. Y. 660; McCall v. Bailway, 54 N. Y. 642; 4 Am. & Eng. Enc. Law (1 ed.) 74; 3 Elliott, Railroads 1171; Brinker v. Bailway, 121 Mich. 283 [80 N. W. Rep. 28]; Belief ontaine By. v. Hunter, 33 Ind. 335 [5 Am. Rep. 201]; New York, C. & St. L. v. Swartout, 6 Circ. Dec. 768 (14 R. 582) ; Cadwallader v. Bailway, 128 Ind. 518 [27 N. E. Rep. 161] ; Chicago, B. I. & Pac. By. v. Houston, 95 U. S. 697 [24 L. Ed. 542]; Schofield v. Bailway, 114 U. S. 615 [5 Sup. Ct. Rep. 1125; 29 L. Ed. 224] ; Bail-way v. Schneider, 45 Ohio St. 678 [17 N. E. Rep. 321] ; 1 Thomas, Negligence 751; Tully v. Bailway, 134 Mass. 499; Machader v. Williams, 54 Ohio St. 344 [43 N. E. Rep. 324]; Lake Shore & M. S. By. v. Gaffney, 6 Circ. Dee. 94 (9 R. 32) ; 2 Thomas, Negligence 1095; Huff v. Austin, 46 Ohio St. 386 [21 k E. Rep. 864; 15 Am. St. Rep. 613] ; Cleveland City By. v. Osborn, 66 Ohio St. 45 [63 N. E. Rep. 604].
    Charges given for plaintiff before argument. P. C. & St. L. By. v. Peters, 1 Circ. Dec. 20 (1 R. 34) ; Chicago, B. I. & Pac. By. v. Houston, 95 U. S. 697 [24 L. Ed. 542]; McCully v. Clarke, 40 Pa. St. 399 [80 Am. Dec. 584].
    Refusals to charge. Clev. C. C. & Ind. By. v. Elliott, 28 Ohio St. 340; New York, C. <& St. L. By. v. Swartout, 6 Circ. Dec. 768 (14 R. 582) ; Lake Shore & M. S. By. v. Beynolds, 13-23 O. C. C. 199; New York, C. & St. L. By. v. Eistler, 66 Ohio St. 326 [64 N. E. Rep. 130] ; Pennsylvania Co. v. Morel, 40 -Ohio St. 338; Chicago, B. I. & Pac. By. v. Houston, 95 U. S. 697 [24 L. Ed. 542]; Ernst v. Bailway, 39 N. Y. 61 [100 Am. Dee. 405], which is approved in New York, C. & St. L. By. v.
      Swartout, 6 Circ. Dec. 768 (14 R. 585) ; Wheeling & L. E. By. v. Suhrwiar, 12 Circ. Dec. 809 (22 R. 560) ; Grand Trunk By. v. Ives, 144 U. S. 408 [12 Sup. Ct. Rep: 679; 36 L. Ed. 485]; Wolf v. Bailway, 55 Ohio St. 517 [45 N. E. Rep. 708; 36 L. R. A. 812]; Helman v. Bailivay, 58 Ohio St. 400 [50 N. E. Rep. 986; 41 L. R. A. 860]; Schweinfurth v. Bailivay, 60 Ohio St. 215 [54 N. E. Rep. 89]; Lake Shore & M. S. By. v. Beynolds, 11 Circ. Dec. 701 (21 R. 402) ; Monroeville (Vil.) v. Boot, 54 Ohio St. 523 [44 N. E. Rep. 237],
    Exceptions to general charge. Bussell v. Bussell, 3 Circ. Dec. 460 (6 R. 294) ; Davis v. Guarnieri, 45 Ohio St. 470 [15 N. E. Rep. 350; 4 Am. St. Rep. 548] ; Mears v. Mears, 15 Ohio St. 90; Banning v. Banning, 12 Ohio St. 437; Behrens, v. Behrens, 47 Ohio St. 323 [25 N. E. Rep. 209; 21 Am. St. Rep. 820]; Kelch v. State, 55 Ohio St. 146 [45 N. E. Rep. 6; 39 L. R. A. 737; 60 Am. St. Rep. 680]; Effinger v. State, 6 Circ. Dec. 417 (9 R. 376); Jungnitsch v. Iron Co. 105 Mich. 270 [63 N. W. Rep. 296]; Clev. C. & C. By. ,v. Bartrom, 11 Ohio St. 457.
    Refusals to submit to jury, questions propounded by defendant. New York, C. & St. L. By. v. Kistler, 9 Circ. Dec. 277 (16 R. 316).
    Excessive verdict. Cincinnati St. By. v. Altemeier, 60 Ohio St. 10 [53 N. E. Rep. 300].
    G. H. Stewart, for defendant in error.
   DUSTIN, J.

This court regards the doctrine of Russell v. Russell, 3 Circ. Dec. 460 (6 R. 294), later affirmed by the Supreme Court, as sound, and hence has been accustomed to hold, whenever the point has been raised, that a charge in a civil case requiring the jury to be “satisfied” upon any question, is error. We think therefore that the court in this ease erred in its charge where it says:

“To establish this, (meaning contributory negligence), the burden is upon the defendant, and if the defendant has not satisfied you that the deceased himself was guilty of contributory negligence, you must resolve this claim in favor of the plaintiff.”

See also, Kelch v. State, 55 Ohio St. 146, 152, 153 [45 N. E. Rep. 6; 39 L. R. A. 737; 60 Am. St. Rep. 680],

Again we think there was error in giving special charge 3, requested by plaintiff below, which reads:

“If you find from the evidence that the defendant established and erected an electric gong at .this crossing, I charge you that it was the duty of the defendant to keep the same in repair and a failure to do so, whereby said gong did- not sound when the train which caused the death of Albert Sivey approached and ran over the railroad crossing, is negligence, etc.”

The placing of the gong at that crossing was a voluntary matter upon the part of the railroad company. It was not required by any statute, or the railway commissioner, of Ohio to put it there, or to keep it in repair. Hence the above positive instruction that a failure to keep same repaired amounted to negligence, was wrong. It was proper only to consider the condition of the gong with reference to the company’s duty to exercise ordinary care under all the circumstances.

Special instruction 8 given at request of plaintiff below, viz.:

“It is admitted in the case that Eleventh avenue up to defendant’s right of way was, at the time of the killing of Albert Sivey, a duly dedicated, appropriated, improved and traveled street of the city of Columbus and I charge you that the fact, if you find it to be a fact, that the vicinity of said avenue is sparsely inhabited did not warrant or authorize the defendant to run its trains across said crossing as it might over a country road crossing, but that the speed of its trains must be that of reasonable safety having regard to the nature, situation and use of said crossing.”

This implies, if it does not declare, that the highway at the crossing was a city street and not a country road, and not governed by the same rules of law as the latter; whereas the evidence indisputably shows that the crossing in question was and is outside of the city limits; and is, in law, a country road, although called an avenue.

There was also error, we think, in refusing to. give charge No. 16 before argument as requested by defendant below, viz.:

“If you should find from the evidence that the obstructions at and about the crossing and the noises of the moving conveyance in which the decedent was riding were such that the decedent could not without stopping, hear the approach of a train from the north; and that the decedent knew, or in the exercise of ordinary care on his part ought to have known, that such were the conditions; and you further find that if he had stopped and listened first before driving onto the railway track, he would have heard the train which struck him and avoided the collision; and if you also find that the decedent did not so stop and listen, but drove onto the track without taking this .precaution, and was killed, then the decedent was guilty of contributory negligence, and the plaintiff cannot recover in this action, but your verdict should be for the defendant. ’ ’

The difficulty of hearing a train, by reason of intervening objects calculated to break the sound, and the noise of decedent’s wagon on the paved street made it proper we think, to submit to the jury the question whether or not Sivey in the exercise of ordinary care should have stopped to listen. Wheeling & L. E. Ry. v. Suhrwiar, 12 Circ. Dec. 809 (22 R. 560).

Even upon the theory of plaintiff below that it is the duty of the railway company to keep the gong in order nevertheless the traveler may in view of other noises be bound, in the exercise or ordinary care, to stop and listen for the ringing of the gong.

Again in the general charge of the court at the bottom of page 334 we find this language:

“Would a person of ordinary care be led or induced to injury by reason of the location of this bell, and by reason of the fact that it did not ring, and relying upon the fact that it would ring in case a train was coming?”

This assumed, as proven or admitted, the fact that the bell did not ring; whereas that was a question in dispute.

On page 355 in the general charge we observe this language:

“If you should find that * * * said company had failed to adopt sufficient safe guards or warnings to prevent an accident to the person using ordinary care, etc.”

This would impose upon the company a duty much in excess of ordinary care, viz.: an absolute assurance against accident.

We think also the instruction warning' the jury that its special findings must be consistent with its general verdict or the latter would be set aside, was vicious if not erroneous. “The true finding of the issues submitted to them should not be disturbed or qualified by such a consideration;” just as it is wrong to instruct a jury that a verdict for a certain amount is necessary to carry costs. Clev. C. & C. Ry. v. Bartram, 11 Ohio St. 457.

The foregoing errors we think were prejudicial and by reason thereof the judgment of the common pleas court should be reversed, and a new trial granted.

The remaining assignments of error we think are not well taken.

. Wilson and Sullivan, JJ., concur.


author: COOK, J.

text:
    CORPORATIONS — CONSTITUTIONAL LAW — STOCKHOLDER’S LIABILITY.
    [Mahoning (7th) Circuit Court,
    March Term, 1905.]
    Cook, Burrows and Laubie, JJ.
    Swift & Co. v. Youngstown Baking Co. et al.
    Act of the General Assembly of April 29, 1902, Amending and Repealing Original Sec. 3258 is Unconstitutional.
    The act of the general assembly of April 29, 1902, amending and repealing Lan. R. L. 5202 (R. S. 3258), fixing the liability of stockholders of a corporation, so far as it amends and repeals original Sec. 3258, is in violation of Sec. 3, Art. 13 of the constitution of the state.
    Appeal from Mahoning common pleas court.
    W. W. Zimmerman, for plaintiff:
    The amendment of November, 1903, to the constitution, does not terminate actions for stockholder’s liability which accrued previous to its adoption or proclamation. Brown v. Hitchcock, 36 Ohio St. 667; Kulp v. Fleming, 65 Ohio St. 321 [62 N. E. Rep. 334; 87 Am. St. Rep. 611]; Wick Nat. Bank v. Bank, 62 Ohio St. 446 [57 N. E. Rep. 320; 78 Am. St. Rep. 734]; Edwards v. Kearney, 96 U. S. 595 [24 L. Ed. 793]; Mississippi & M, By. v. McClure, 77 U. S. (10 Wall.) 515 [19 L. Ed. 997],
    The effort of the legislature by the acts of April, 1902 (95 O. L. 312), and April, 1904 (97 O. L. 390), in that part of the acts referring to an equal and ratable liability, was, in most of cases, to establish a less liability than the constitutional liability and these acts are therefor unconstitutional. Wright v. McCormack, 17 Ohio St. 86; Umsted v. Buskirk, 17 Ohio St. 113; Brown v. Hitchcock, 36 Ohio St. 677; Section 28, Art. 2 Ohio Const.
    If 'the act of April, 1902 (95 O. L. 312), and that of April, 1904 (97 O. L. 390), are unconstitutional, the original Lan. R. L. 5202 (R. S. 3258), which these acts sought to amend, is still in force. State v. Thrall, 59 Ohio St. 368 [52 N. E. Rep. 785]; State v. Buckley, 60 Ohio St. 273 [54 N. E. Rep. 272].
    Liability of defendant, Ramsey. Section 57i Bankruptcy act of 1898; Collier, Bankruptcy 379; Harpold v. Stobart, 46 Ohio St. 397 [21 N. E. Rep. 637; 15 Am. St. Rep. 618] ; Herrick v. Wardwell, 58 Ohio St. 294 [50 N. E. Rep. 903],
    Reserved power. McGowan v. McDonald, 111 Cal. 57 [43 Pac. Rep. 418; 52 Am. St. Rep. 149]; Sleeper v. Goodwin, 67 Wis. 577 [31 N. W. Rep. 335]; Gibson, In re, 21 N. Y. 9; Sherman v. Smith, 66 U. S. (1 Black) 587 [17 L. Ed. 163]; Weidenger v. Spruance, 101 111. 278; Ireland v. Turnpike Go. 19 Ohio St. 369.
    W. A. Maline & G. J. Carew, Norris, Jackson & Rose, D. F. Griffith, T. McNamara, Jr., S. M. Thompson, T. W. Sanderson and Anderson & Henderson, for defendants.
    C. A. Manchester, for defendant, Ramsey:
    Constitutionality of acts in question. Kelley v. State, 6 Ohio St. 269; State v. Sinks, 42 Ohio St. 345; Gager v. Trout, 48 Ohio St. 89 [26 N. E. Rep. 1013]; State v. Jones, 66 Ohio St. 453 [64 N. E. Rep. 424 ; 90 Am. St. Rep. 592]; Bronson v. Schneider, 49 Ohio St. 438 [33 N. E. Rep. 233]; YoungVové v. Lime Co. 49 Ohio St. 663 [33 N. E. Rep. 234]; Sinking Fund Cases, 99 U. S. 700 [25 L. Ed. 496]; 26 Am. & Eng. Enc. Law (2 ed.) 641; 3 Thompson, Corporations Sec. 3221; Chouteau Spring Co. v. Harris, 20 Mo. 382; Middletown Bank v. Maguí, 5 Conn. 28; Cole v. Ryan, 52 Barb. 168; Cowles v. Cromwell, 25 Barb. 413; Miller v. Insurance Co. 50 Mo. 55; McClaren v. Franciscus, 43 Mo. 452; Johnson v. Underhill, 52 N. Y. 203; Grissell v. Bristowe, L. R. 3 C. P. 112; Huddersfield Canal Co. v. Buckley, 7 Term 36; Croxton’s Case, 1 De G. M. & G. 600; Sutton’s Case, 3 De G. J. & S. 262; Mayhew’s Case, 5 De G. M. & G. 837; Allen v. Railway, 11 Ala. 437; Johnson v. Laflin, 5 Dill 65 [13 Fed. Cas. 758]; affirmed, Johnston v. Laflin, 103 U. S. 800 [26 L. Ed. 532]; Jackson v. Manufacturing & M. Co. 69 Tenñ. (1 Lea.) 210; Merrimac Min. Co. v. Levy, 54 Pa. St. 227 [93 Am. Dec. 697] ; Billings v. Robinson, 94 N. Y. 415; Savage v. Putnam, 32 Barb. (N. Y.) 420; Tucker v. Gilman, 121 N. Y. 189 [24 N. E. Rep. 302]; Billings v. Robinson, 28 Hun (N. Y.) 122; Stewart v. Printing & Pub. Co. 1 Wash. St. 521 [20 Pac. Rep. 605]; Mason v. Alexander, 44 Ohio St. 318 [7 N. E. Rep. 435] ; Harpold v. Stobart, 46 Ohio St. 397 [21 N. E. Rep. 637; 15 Am. St. Rep. 618]; Cm. H. & D. Ry. v. Hedges, 63 Ohio St. 339 [58 N. E. Rep. 804] ; Norwood (Vil.) v. Wooley, 4 C.ire. Dec. 274 (9 R. 195) ; State v. Roosa, 11 Ohio St. 16; The Queen, 93 Fed. Rep. 834; Wilder v. Campbell, 4'Idaho 695 [43 Pac. Rep. 677]; Young v. Jones, 180 111. 216 [54 N. E. Rep. 235], reversing 78 111. App. 78; Kent v. Bentley, 6 Cire. Dec. 457 (10 R. 132) ; Voting Laws, In re, 12 R. I. 586; Fordyce v-. DuBose, 87 Tex. 78 [26 S. W. Rep. 1050] ; State v. Bradshaw, 35 Fla. 313 [17 So. Rep. 642] ; Walton v. Fudge, 63 Mo. App. 52; Walton v. Fudge, 1 Mo. App. 620; Kirkwood v. Hoxie, 95 Mich. 62 [54 N. W. Rep. 720; 35 Am. St. Rep. 549]; Reid v. New York, 139 N. Y. 534 [34 N. E. Rep. 1102], affirming Reid v. New York, 68 Hun 110 [22 N. Y. Supp. 623].

      The constitutional amendment, in taking away liability as to existing debts, does not impair the obligation of contract for the reason that in the constitution of 1851, being the instrument in which double liability was created, the right was saved to alter or repeal the laws relating to corporations, as well as to amend the constitution in any respect, at any time. 26 Am. & Eng. Enc. Law (2 ed.) 1019; Sherman v. Smith, 66 U. S. (1 Black) 587 [17 L. Ed. 163]. ■
    Extent of Ramsey’s liability. Perry v. Beardslee, 10 Mo. 568; Thayer v. Tool Co. 70 Mass. (4 Gray) 75; Potter v. Machine Co. 127 Mass. 592 [34 Am. Rep. 428]; McDoioall v. Sheehan, 129 N. Y. 200 [29 N. E. Rep. 299]; Harpold v. Stolart, 46 Ohio St. 397 [21 N. E. Rep. 637; 15 Am. St. Rep. 618]; 3 Thompson, Corporations Sec. 3226; Herrick v. Wardwell, 58 Ohio St. 294 [50 N. E. Rep. 903"
   COOK, J.

This is an action to enforce the statutory liability of a stockholder of the Youngstown Baking Company, a corporation duly organized under the laws of the state of Ohio.

All the liabilities claimed upon arose between January 1, 1903, and May 2, 1903, and the principal question and really the only one that is important is: Is David M. Ramsey, as such stockholder, liable upon such claims in his individual capacity ?

It is claimed that under the act of the general assembly passed April 29, 1902 (95 O. L. 312), he is not.

It will be observed that all the liabilities of this company arose subsequent to the passage of this act and that, by the terms of said act, the stockholder is not liable until the corporation becomes unable to pay the claims against it. The provision of the statute is as follows:

Laning R. L. 5202 (R. S. 3258). “The stockholders of a corporation who are the holders of its shares at a time when its debts and liabilities are enforcible against them, shall be deemed and held liable, equally and ratably, and not one for another, in addition to their stock, in an amount equal to the stock by them so held, to the creditors of the corporation, to secure the payment of such debts and liabilities; and no stockholder who shall transfer his stock in good faith, and such transfer is made on the books of the company, or on the back of the certificate of stock properly witnessed or tendered for transfer on the books of the company prior to the time when such debts and liabilities are so enforcible, shall be held to pay any portion thereof. ’ ’

David M. Ramsey became a stockholder in said corporation, holding a certificate for the same in the sum of $1,500. During the time he was such stockholder debts were contracted by the corporation in a considerable amount, but before such debts became enforcible against the stockholders by reason of the inability of the corporation to pay the claims against it, he sold his stock bona fide for the full consideration of $1,500; and the transfer of his stock was regularly made upon the books of the company to a party that is unable by reason of insolvency to pay the assessment made against him.

The attorneys for Ramsey deny his liability under the provisions of this statute, while the attorneys of Swift & Company claim this statute is unconstitutional for the reason that it violates Sec. 3, Art. 13 of the constitution and is therefore wholly inoperative.

It is conceded that the Supreme Court has distinctly decided in two cases under the statutes that preceded the act of April 29, 1902, that the stockholder became liable at least as guarantor or surety from the date that the debt was contracted, and that a subsequent sale and transfer of his stock, although bonafidely made, did not release him. Brown v. Hitchcock, 36 Ohio St. 667, 678; Harpold v. Stobart, 46 Ohio St. 397 [21 N. E. Rep. 637; 15 Am. St. Rep. 618].

It will be observed by reference to these cases that the court passed upon both the constitutional provision and the statute and it is claimed that the decisions were really based upon the provisions of the statute and that it is fully within the power of the general assembly to change the provisions of the statute.

The majority of the court is of opinion that these cases distinctly decide that, by the' provision of See. 3, Art. 13 of the constitution, by its terms, independent of the statute, the liability of the stockholder attaches at the time the liability is incurred by the corporation and that that is the settled law of this state under the constitution, as construed by the Supreme Court and, therefore, the act of April 29, 1902 is in violation of the constitution of the state and wholly inoperative. The same holding should be made as to. the act of April 25, 1904 (97 O. L. 390).

Finding and decree in favor of plaintiff against.the defendant, David M. Ramsey.

Laubie, J., concurs.

Burrows, J., dissents.


author: DONAHUE, J.

text:
    EMINENT DOMAIN — ATTORNEYS—VERDICT—COSTS— ESTOPPEL — STATUTES.
    [Richland (5th) Circuit Court,
    January Term, 1904.]
    Yoorhees, Donahue and McCarty, JJ.

      Anna L. Wiler v. Logan Nat. Gas & Fuel Co.
    1. Right of Probate Court to Allow Attorney Fees to the Defendant in Condemnation Proceedings, where Plaintiff Refuses to take the Property and pay the Amount of the Verdict.
    Where a corporation has abandoned condemnation proceedings to appropriate private property, the probate court is authorized to include in defendant’s expenses his reasonable attorney fees, and the power to fix this amount at what is just and reasonable is with the probate court, and its judgment in that behalf will not be disturbed unless it appears to be an abuse of discretion or manifestly against the weight of the evidence.
    2. Evidence as to Nature of Services, etc., Admissible, to Guide Court in Fixing Reasonable Attorney Fees, in Such Proceeding.
    The introduction of evidence on a motion for judgment for defendant’s costs and expenses in a condemnation proceeding abandoned by the plaintiff, for the purpose of proving the-amount of expenses and attorney fees defendant has paid or will be compelled to pay is proper; but the decision as to the reasonableness thereof rests in the discretion of the court, and for this purpose, evidence is likewise admissible, to show the nature of the services performed by counsel, the character of the litigation and the amount involved.
    S. Corporation Bringing Condemnation Proceedings Estopped to Set up Unconstitutionality of Part of Act.
    A corporation invoking the aid of the courts to acquire private property by condemnation proceedings and seeking to avail itself of the special privileges conferred on it by Chap. 8 of the probate code, Lan. R. L. 9990-10030 (R. S. 6414-6453), is estopped to question the constitutionality of the parts of the law which impose burdens upon it.
    4. Probate Court has Authority to Empanel Jury to Determine Question of Fact.
    Wherever the probate court has jurisdiction to hear and determine any question of fact, if either party thereto is entitled to a jury trial for the determination of the question, the court has full power to impanel such a jury.
    5. Fixing Costs by Probate Court not a Violation of Guaranty of Trial by Jury.
    The legislature has authority, in providing for special proceedings, to fix and determine what shall be denominated as costs, and to authorize the court to fix the amount thereof; and the constitutional guaranty of the right of trial by jury is not violated by such a provision in condemnation , proceedings.
    6. Special Method Provided for Prosecuting Error to Appropriation Proceedings is Exclusive.
    Where the method is provided by which error shall be prosecuted to the judgment or finding of a court in a special statutory proceeding, such method will be exclusive; hence, error proceedings brought in the com mon pleas court in a condemnation proceeding under the general statutory provisions, are improper, and a reviewing court acquires no jurisdiction thereby.
    7. Amendment to Act of Legislature Presumed to be Made in Contemplation of Remaining Sections.
    Under the presumption that amendments to a statute are made in contemplation of a construction in pari materia with the other sections of the original act, a section providing the mode of prosecuting error to all judgments entered in pursuance of the provisions of an act will be construed to apply to a proceeding brought under an amended section, although the original act did not provide therefor.
    Error to Richland common pleas court.
    Cummings, McBride & Wolfe and L. T. Neal, for plaintiff in error.
    Brucker & Cummins, for defendant in error.

       Affirmed, no report, Logan Nat. Gas. & Fuel Co. v. Wiler, 50 Bull. 122.

   DONAHUE, J.

“The action out bf which this proceeding in error originates was brought by the Logan Natural Gas & Fuel Co., a corporation under the laws of Ohio, to appropriate private property for the laying of its gas mains and pipes, under favor of the provisions of Chap. 8, title 2 Rev. Stat. The case was tried to a jury in the probate court of this county, and the jury returned a verdict fixing the compensation and damages to defendants in the sum of $10,250. The probate court entered a judgment confirming this verdict and no error was prosecuted to the same, but the plaintiff corporation failed and neglected to pay the amount of the verdict within the time specified in Lan. R. L. 10011 (R. S. 6434) for the payment of the same, and thereupon the probate court on motion of defendants, proceeded to and did enter a judgment against the corporation in favor of defendants in that action for the amount of the expenses incurred by defendants, including time spent and attorney fees incurred by them, upon evidence offered in that behalf, in such' amount as to it seemed just and reasonable, and that amount it fixed at $1,535.50. Error was prosecuted by the plaintiff corporation to this judgment of the probate court, in the common pleas court of this county, and that court reversed the judgment of the probate court for divers reasons stated in the entry of reversal, and error is now prosecuted by the defendants in the original suit to the judgment of the "ommon pleas court reversing the judgment of the probate court.

The plaintiffs in error contend first,' that the proceedings in error in the common pleas court were brought under the general statute and not in accordance with the special statute directing the time in which error proceedings under this chapter should be brought, to wit, 30 days; and further contend that the common pleas court erred in holding that Lan. R. L. 10011 and 10012 (R. S. 6434 and 6435) were unconstitutional ; and that it erred in holding that improper evidence was admitted, and that the judgment below was excessive.

1. As to the introduction of evidence. We think it was perfectly proper for the defendants in that case to show to the court the amount of expenses and attorney fees they had paid or would be compelled to pay. The question of its reasonableness, however, was still left to the court. We think the court had a right to advise itself in a legitimate way as to the services performed by counsel, the nature and extent of the same, and the character of the litigation and the amount involved therein, in determining what would be just and reasonable, and we do not think there was any error in the admission of that evidence.

2. As to the contention of plaintiff in error that the amount allowed was excessive. It is sufficient for us to say that the probate court has the authority to fix this amount at what is just and reasonable, and its judgment ought not to be disturbed unless it appears to be an abuse of discretion or manifestly against the weight of the evidence. We think the services rendered, however, were reasonably worth the amount alloAved. There is no question but that the ordinary fee in such case would have been at least that amount, had the verdict been paid, and the fact that it was not paid by the defendant in error cannot operate to lessen the amount of reasonable attorney fees; but if the contention of defendant in error is correct, that the property in dispute was not worth to exeeed $1,000, even in the opinion of defendants below, and in their opinion only worth $250, and the services of counsel were so meritorious as to wrest a verdict from the jury of $10,250 to which no error is prosecuted, and in view of the fact that able counsel represented the other side of the ease, it would seem that that character of service is reasonably worth the sum charged, and few litigants would complain of the amount. We think the ability with which the legal service was performed and the result obtained, has something to do with fixing a fair and proper compensation to the attorney, and this is but a matter of common knowledge to the profession, and the profession does so regulate its fees.

3. The next contention, and in fact the principal contention urged upon us is the question of the constitutionality of these sections. Wc think it extremely doubtful whether the defendants in error are in position to raise the question of the constitutionality of these sections. This whole chapter with all its provisions, is a chapter conferring extraordinary and special powers upon corporations, far in excess of the powers in the individual. It gives the corporation a right to take private property without the consent of its owner. It is in effect one of the attributes of the sovereignty of the state. In other words, it is clothing corporations with a right of eminent domain, and in conferring extraordinary powers upon corporations, it would seem to be but just and fair to impose proper limitations and burdens.

This whole chapter with all its parts and parcels is but one provision, notwithstanding the sections are differently numbered. The foundation of the whole was passed as but one act, and with a few amendments added thereto from time to time, still remains as it was originally enacted in one act of the legislature. Therefore we think that when a corporation comes into court and invokes the aid of a court to acquire and possess itself of private property, and avail itself of all the rights and benefits conferred by this chapter, that it is forever .estopped to question the constitutionality of each and every part of the law that it is seeking to assert in its own behalf. This question is properly, fairly and fully disposed of in the case of Tone v. Columbus, 39 Ohio St. 281 [48 Am. Rep. 438], in which it was held that a person asking a city council by petition or otherwise, to proceed under an unconstitutional law to make certain improvements, was forever estopped to raise the question of the constitutionality- of the act which he himself had asked the city council to proceed under.

It is argued that the right of trial by jury is taken away from this corporation by Lan. R. L. 10011 (R. S. 6434), because it makes no provision for right of trial by jury. It is true that nothing is said in the statute of the right of the court to impanel a jury, but the right of the court to fix attorney fees in cases is granted by the other statutes in other cases in this state, notable instance of which is partition cases, and no question has ever been raised as to the right of the court so to do, and we think that even if it were not possible for the court to impanel a jury at the request of the corporation, that it is possible for the legislature of Ohio to declare what shall be denominated as costs, that a litigant may recover, and what may not be. The legislature has so declared in other statutes, and where a special proceeding is provided for, why may not the legislature fix and determine what shall be regarded as costs and give the court jurisdiction in such cases as well as under the general statute to fix and settle cost bills therein. But while we think the defendant in error was not entitled to a jury in this case, yet we do not wish to be understood as holding that the probate court has no jurisdiction to impanel a jury to try this question. We. think the authorities in Ohio are ample and conclusive that wherever the probate court has jurisdiction to hear and determine any question of fact, that if either of the parties thereto is entitled to demand a jury for the determination of that issue of fact, the probate court has full power to impanel such a jury.

In the case at bar the record does not disclose that the plaintiff demanded a jury. It merely shows that it objected to the introduction of evidence. Of course if the court had no power to impanel a jury, the law does not require any vain nor useless thing to be done, and the failure to demand a jury would not defeat the plaintiff’s right to a jury.

In the case of Railway v. O’Harra, 48 Ohio St. 343 [28 N. E. Rep. 175], and particularly on page 356, the court hold that by virtue of the provisions of Lan. R. L. 826, 828, 9987 (R. S. 537, 539, 6411), the probate court has the same power and authority as has the common pleas court. Further on the court say:

“In such case any order which it would be necessary for the common pleas to make in the impaneling of a struck jury or a special jury; may be made by the probate court, because necessary to carry into effect the powers granted it in the trial of an issue upon which the parties are entitled to a jury.”

But if this opinion leaves the question at all in doubt, it is fully settled by the case of Doan v. Biteley, 49 Ohio St. 588 [32 N. E. Rep. 600]. The second paragraph of the syllabus in that case is as follows:

“The probate court has jurisdiction to try any question of fact arising in such action therein prosecuted, or afford the parties a trial by jury when the nature of the issues entitle them to a jury trial, or render it appropriate. ’ ’

In the opinion in that case the court say:

“The record does not disclose that any.demand was made for a jury trial but, if there were no means by which it could have been obtained, the failure to make the demand, would not affect the question. We are satisfied, however, that ample power is vested in the courts of probate to award the parties a trial by jury in such cases, when the nature of the issues demands it. This power may be found in Sec. [Lan. 9683] 6143 Rev. Stat.”

But we do not think that the question as to whether the probate court had a right to impanel the jury or not is very material in the disposition of this cause. The original act passed April 23, 1872, and found in 69 O. L. 88, did not, as we read it, make any such provision as is now found in Lan. R. L. 10011 (R. S. 6434), but did provide in Sec. 10 that the probate judge should render judgment on the verdict for the amount thereof and for costs “which judgment may be enforced by execution, as upon judgment at law.” This Sec. 10 was amended April 19, 1873 (70 O. L. 147), but it still provided that the judgment rendered upon the verdict should be enforced by execution as upon judgment at law. March 23, 1875 (72 O. L. 74) this Sec. 10 was amended, and in this amendment to Sec. 10 the provision for enforcement of the judgment by execution was omitted, and a proviso added, which proviso is in the language of Lan. R. L. 10011 and 10012 (R. S. 6434 and 6435), and this is the last enactment of the legislature upon this subject, and the division of this Sec. 10 of that act as amended on the date last above-named, has been separated into Lan. R. L. 10011 and 10012 (R. S. 6434 and 6435), by the codifying commission, but naturally we must look to the law as it was enacted in order to determine any question arising from the same, and Sec. 10 of that act is now separated not only into Lan. R. L. 10011 and 10012 (R. S. 6434 and 6435) but also portions of it are found in Lan. R. L. 10009 and 10010 (R. S. 6432 and 6433), so that Lan. R. L. 10009, 10010, 10011 and 10012 (R. S. 6432, 6433, 6434 and 6435), are Sec. 10 of the act as amended in 72 O. L. 74, and the whole section must be taken together in determining as to any of its parts.

The provisions of this amendment are solely for the benefit of the corporation bringing the action, and if this amendment is unconstitutional in the burdens imposed upon the corporation, the corporation cannot claim its benefits in one breath and its unconstitutionality in another. It must stand or fall together. Of course we recognize the rule that 'where a portion of a statute is unconstitutional and it can be separated without impairing the constitutional part of it, it ought to be done; but when a statute is amended granting specific and extraordinary rights to a corporation not theretofore enjoyed by it, and as a condition thereto attaching additional burdens, and fair and equitable burdens, viewed from any standpoint, we do not think that the corporation claiming its benefits can attack that portion which increases its burdens. But if the contention of defendant in error is true, that this amendment granting this special privilege is unconstitutional, then the unconstitutional amendment could have no effect whatever upon the law as it then existed, and the repealing clause does not have the effect of repealing the original constitutional section.

So that if the contention of the corporation here is true, and it is permitted to make this contention, then the judgment of the court must be held to have been pronounced under the authority of the original act, and can be enforced by execution at law. So that, as we view it, the corporation by insisting upon the unconstitutionality of this section, takes away from itself the privilege to refuse payment of the judgment rendered upon the verdict. But, as we have already suggested, we do not think this statute is unconstitutional, and even if it were, we do not think, this defendant in error, having proceeded under favor of this chapter can now attack it.

One other argument advanced by counsel for defendant in error is, that the provision of that portion of the section which is now found in Lan. R. L. 10012 (R. S. 6435) gives the owners of land a privilege that it does not give to the corporation, and therefore that under the provisions of this section, the litigants do not stand equal in the law, and for that reason the statute must be unconstitutional, but for the very reasons we have heretofore suggested, to wit, that this section is in favor of the corporations and for its benefit, and conferring upon it a privilege of refusing to take under the judgment, which is not extended in the same section to the owner of land, that when it exercises that privilege it cannot be heard to complain that a privilege is afforded the landowner in the same section, upon their refusal to take, that is not afforded to it. We think, however, that the legislature had a right in extending to corporations this privilege, to burden them with the conditions thereof, and it is for them to take or accept as they choose. There is certainly no rule of right nor conseionable theory upon which a corporation may harrass owners of land with litigation to subject the land to the use of that corporation, and when the judgment and verdict is unsatisfactory to it, abandon the litigation without making the defendants whole.

Aside from all these "considerations we think the question made by the plaintiff in error that the proceeding in error was not properly brought by the plaintiff in error in the common pleas court, according to the terms and within the time limited by Lan. R. L. 10014 (R. S. 6437) must be sustained. The general laws for the prosecuting of error apply to all matters not specifically provided for, but where there is a special proceeding provided by statute,'and where the means and method are pointed out in the same law, by which error shall be prosecuted to the judgment or finding of a court in these special proceedings, is definite and certain, the special provisions must obtain.

Laning R. L. 10014 (R. S. 6437) was Sec. 12 of the original act and provided, as originally enacted, that all the proceedings herein provided for in the probate court, shall be open to exceptions in the same manner that exceptions are or may be taken in the civil suits in the court of common pleas, and either party may file their petition in error in the court of common pleas of the proper county within thirty days from the rendition of the final judgment in the probate court, etc.

This Sec. 10 under authority of which the probate court rendered judgment in this action preceded Sec. 12 and of course the various amendments of Sec. 10 'take the place in the original act of the' original section, and all amendments of that section are presumed to have been made in contemplation of the provisions of the subsequent sections of the original act. So that we think the provision that “a proceeding herein provided for in the probate court” found in the language of the original Sec. 12 is broad enough to include this judgment, and therefore we think it is specially provided in this original act, providing for this special proceeding, how error shall be prosecuted to each and all of the judgments entered in pursuance of the foregoing sections of the same act. This original Sec. 12 has never been amended; the codifying commission has left out the words that we have quoted, but that, of course, is not important. They are to be taken into consideration in constru-ing the statute, and so considering them, we cannot but find that this judgment is one of the final judgments named in this section, and if error is to be prosecuted therefor, it must be prosecuted under the provisions thereof.

“We therefore find that the court of common pleas erred in reversing the judgment of the probate court, and that there is' no error apparent upon the record of the proceedings in the probate court to the prejudice of the corporation defendant in error .here; so that the judgment of reversal is reversed and the judgment of the probate court is affirmed, with costs, and said cause is remanded to the probate court for execution. Exceptions noted.”

Voorhees and McCarty, JJ., concur.