author:
Swing, J. •
      Swing, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1898.
    Before, Cox. Smith, and Swing, JJ.
    J. W. DAVY, a Taxpayer, v. THE VILLAGE OF HYDE PARK.
    A village is without power to enter into a contract under the provisions of a new ordinance until ten days after the final publication of the ordinance.
    Error tc the Court of Common Pleas of Hamilton county.
   Swing, J. •

This is a suit by a taxpayer of the village of Hyde Park. to enjoin said village fr.om carrying out a contract with a corporation to furnish electric lighting for said village.

Where a company stands by with a full knowledge of the character of a cause in litigation, and does not ask to be made a party defendant until after the rendering of an adverse judgment, it will not thereafter be aided by the court in getting into the case.

A village can only enter into a contract for electric lighting for a term of ten years.

F. H. Kinney, and Hollister & Hollister for Plaintiff.

W. J. Davidson, and Hdwin Qholson,for the Village.

Quite a number of grounds have been assigned why said contract should not be permitted to be enforced. The court is of opinion that clearly on one of these grounds this contract is invalid.

The contract was entered into on January 5, 1898. The ordinance was passed on December 28, 1897, and the first publication was made under it January 1, 1898. The earliest time at which said ordinance could become operative was ten days from the final publication, which was January II, 1898. And under the rule laid down in the case of Kinsley v. Oily of Hamilton, 3 C. C., 201, the village had no power to act until the expiration of the time prescribed by law, and that any action taken by the village prior to that time would be void.

On some of the other objections raised to the legality of this contract some of the court have grave doubts, but upon these we deem it unnecessary to express an opinion, and no ruling will be made thereon, and the injunction will therefore issue on the ground that the contract was entered into before the village had any power to contract.

SAME OASE-ON EE-HEA BING.

Swing, J.

■We have reconsidered the matter in controversy here upon the questions raised in the brief of defendant.

Our conclusion, however, remains the same. Without •considering whether the contract signed and intended to be the conti act is in fact the contract between the parties, or whether the ordinance and the bond constitute the contract, in either event the plaintiff is entitled to an injunction. We •think the ordinance is invalid on one ground at least, and that is that it is an ordinance granting certain rights to the •company for the term of fifteen years, and one of the agreements is contained in section fifteen of the ordinance which ¡•seeks to exempt them from taxation during the time said plant shall be operated by said company; and by section six ■of the ordinance the company was granted the right to operate for the term of fifteen years. This ordinance says: “Hereby and herein granted and conferred, shall remain in :full force and effect, commencing with the acceptance of this ordinance, and ending fifteen years thereafter.” Ten years was the limit for which the village might contract; but it has agreed to either exempt from taxation the company’s property, or else to pay the company a sum equal to ■the amount of the municipal taxes levied against it.

With the filing of the brief for a re-hearing the Electric Light Company asked leave to be made a defendant and file an answer. Such request should only be granted in the interests of justice. It does not seem to me that any interests of justice will be subserved by allowing it to be filed. The company waited until after the judgment had been rendered, and made no effort to be made a party, although its •attorney appeared as assisting the village in the trial of the, •case. So that there is no question of surprise or want of knowledge of the pendency of the action, but, in fact, the ■company stood by until the case was decided.

On the question of the merits of the controversy we have this to say in this connection, that in onr opinion it was a very improvident contract for the village to make. With a possible yearly income of about $8,000, it was proposed by this ordinance to expend nearly $6,000 for electric lighting. No comment need be made on such conduct. The company will not now be aided in getting into this case, but will be left to work out its rights without regard to this action.

F. H. Kinney, and Hollister & Hollister, for Plaintiff,

W. J. Davidson, and Edwin Gholson, for the Village.


source: Caselaw Access Project

author: Adams, J.

license: Public Domain

text:
    (Fifth Circuit — Licking Co., O., Circuit Court
    Oct. Term, 1898.)
    Before Adams, Douglass and Smyser, JJ.
    THE STATE OF OHIO EX REL. CHAS. W. MILLER v. C. S. BRADY, Clerk of the City of Newark, and E. T. RUGG, Treasurer of the City of Newark, Ohio.

      Change in classification of city by increase of population—
    The city of Newark, having a population of more than ten thousand and less than twenty thousand by an official abstract of the census of 1890, was made a city of the third grade, second class, by the acts of Peb. 10th, 1892. 89 O. L., 18; Feb. 6tn, 1894 (91 O. L., 14), and March 13th, 1894 (91 O. L., 58).
    Mandamus.
   Adams, J.

The case of the State of Ohio ex rel. Chas. W. Miller v. O. S. Brady, clerk of the city of Newark, and E. T. Rugg, treasurer.of the city of Newark, Ohio, is a proceeding in mandamus. The relator says that prior to the^federal census of 1890, and prior to July 1st, 1890, the city of Newark was a municipal corporation, organized under the laws of Ohio, and was a city of the fourth grade, second class. That, by the census of 1890, and by the secretary of state’s report, or abstract of that census, Newark had more than ten thousand and less than twenty thousand inhabitants, to-wit: fourteen thousand three hundred and seventy. That the city council has never determined that it was inexpedient for the city to pass from one grade to another, and that the city council has never taken any action either way on the question of the expediency, or the want of expediency of such change in grade or class.

That W. A. Veach, J. B. Thomas, H. C. Cochran, and C. W. Miller constitute the board of elections in said city; and says that, by reason of certain acts of the legislature, enacted since the census of 1890, Newark has become a city of the third grade, second class.

That on July 1st, 1898, by order of the board of elections, a written order or certificate was issued, signed by the president and secretary of the board, certifying the various amounts due the members and officers of the board. That there are two hundred and sixteen dollars and sixty-six cents due to the relator for salary from June 1st, 1897, to July 1st, 1898, That the certificate was received by the clerk, who refuses to draw his warrant on the treasurer, and that the treasurer will refuse to pay, though the money is in the treasury of the city, unappropriated for other purposes, and applicable to the payment of the salaries of the relator and other members of the board.

A writ of mandamus is asked in favor of the relator, to compel the issue of a warrant, and the payment of the warrant for that amount of salary.

It is agreed that the allegations of the petition are true. That is, the case is submitted to this court as though the petition was an agreed statement of facts.

Under section 2926t, if Newark is a city of the third grade, second class, the salary of a member of the board is two hundred dollars per annum, and the secretary’s salary is two hundred dollars per annum, and such additional sum per annum as the board may allow, not exceeding one hundred and fifty dollars.

On these facts we are to determine, as a matter cf law, whether Newark is a city of the fourth or third grade of the second .class, since June 1st, 1897. If a city of the third grade, relator is entitled to a peremptory writ. If of the fourth grade, he is not.

That the legislature may make a classification of cities for the purposes of legislation, based on population, and so that other cities may enter and become members of a particular class without the aid of additional legislation, is established by a long line of decisions of the supreme court. (State ex rel. v. Baker, 55 Ohio St., 1.)

Counsel for the defendant relies on the case of Hayes & Sons v. City of Cleveland, 55 Ohio St., 117. The opinion begins on page 123. I read the greater part of that opinion:

“On the question whether Cleveland is a city of the second grade, first class, we are of the opinion from the agreed case, that it is such city. Under a proviso contained in section 1549, Revised Statutes, the advancement of a city from the second grade to the first grade of its class, by increase of population, could be prevented by the action of its city council declaring it inexpedient to do so. This was done on February 15, 1892 The claim that this should have been done on or before July 1, 1891, is not tenable. The ‘official report’, referred to in section 1547, Revised Statutes, on which the population of a city is to be ascertained for the purpose of determining the class and grade to which it belongs, is not the report of the superintendent of the census, but the report of an officer of the state, desl ignated by law to make the report. This officer is the secretary of state, and the report is that which he is required by section 1617, Revised Statutes, to make of the name ‘of each municipal corporation’, its grade and class, and its population as ascertained by the preceding federal census.’ This report is required by the following section to be transínitted to the general assembly at its next session thereafter. The section does not fix the time when the report is to be transmitted. This is ascertained by section 62, Revised Statutes, and must be on or before November 20th of each year, the time fixed for tbe making of all reports by state officers. The report was transmitted November 17th, 1891, as required by this section, and then became the official report, of which municipal corporations must take notice, and, before the first of the following July” (that would be July, 1892) “take steps to prevent advancement if by their population, thus shown, they would then advance, and they deem it inexpedient to do so, Hence, the action taken by the council was in due time, and the city remained, and is a city of the second grade, first class.”

The claim of counsel for the defendants is that the council of Newark had until July 1, 1892, to declare it inexpedient for the city to advance, under the provisions of section 1549, as it stood up to April 15, 1892.

Section 154.9 (the proviso which applies in this case), prior to April 15, 1892, read as follows:

“Provided, however, that if before the first day of July, in any year, council determined it to be inexpedient that a municipal corporation should pass into any other class or grade, under the operation of this section, and the preceding sections fifteen hundred and forty-seven and fifteen hundred and forty-eight, such municipal corporation shall remain in the class or grade in which it then may be, until it is advanced under other provisions of-this title.”

Under the provision of the statute counsel claim that the council of Newark had until July 1st, 1892, to declare it inexpedient for the city to advance in grade; that on April 15th, 1892, the legislature came to the aid of the city council, and, by the amendment of section 1549, as found in 89 'O. L., 302, prevented the advancement of the city until ■the council, by a two-thirds vote, declared such change of •class or grade to be expedient. By the statute, as it originally stood, the cities advanced unless the council declared it inexpedient for them to advance. By the amendment, the cities did not advance in grade until the city council, by a two-thirds vote, declared it to be expedient.

It is apparent from an examination of the case in 55 Ohio St., from which I have just read, and section 1549 and the amendment to it, that they apply to the advancement of cities in grade or class by reason of growth in population alone, and not to a classification, or re-classification, of municipalities by the legislature. Has the legislature taken Newark from one grade to the other? Under seer tion 1548, as it stood prior to 1890, Newark was in the fourth grade, second class. Section 1548 was amended March 23rd, 1891. 88 O. L., page 160. I read the part of the statute relating to third and fourth grade cities. The beginning of the statute is:

“Existing corporations organized as cities of the second class, shall remain such until they become cities of the first class, and their grades, and the grades of those which may be, or may become, cities of the second class, shall be determined as follows: those which on the first day of July last, had, and those which on the fisrt day of July, in any year, have, when ascertained in the same way” (that is, by the official report of the secretary of state made from the federal census) “more than ten thousand, and less than twenty thousand inhabitants, shall constitute the third grade; * * * those which, on the first day of July last, had, and those which hereafter, on the first day of July, in any year, have less than ten thousand, and more than five thousand inhabitants, shall constitute the fourth grade.’’

It may be that this amendment, coming before the secrer tary of state’s report, made November 17, 1891, of the census of 1890, had no effect on the city of Newark; but that cannot be said of the amendments of February 10th, 1892, 89 O. L., 18, and of February 6, 1894, 91 O. L., 14, and of March 13, 1894, 91 O. L., 58, The amendment, found in 91[0. L., 58 is, I believe, the last amendment of that section, and that provides:

J. A. Flory, for Relator.

T. B. Fulton, for Respondents.

“Existing . corporations, organized as cities of the second class, shall remain such until they become cities of the first class, and their grades, and the grades of those which may be or may become cities of the second class, shall be determined as follows * * * those which, on the first day of July, A. D 1890, had, and those which, on the first day of July, in any year, have, when ascertained in the same way, more than ten thousand and less than twenty thousand inhabitants, shall constitute the third grade.”

It will be noticed that here, for the first time, the specific date, “July 1st, 1890,”is used. It says: “those which, on the first day of July, 1890, had, and those which, on the first day of July, in any year, have when ascertained in the same way” (that is, by the secretary of state’s report) “more than ten thousand and less than twenty thousand inhabitants, shall constitute the third grade.”

This is a definite, specific declaration of the legislature; a definite grading and classification, on the basis of population, as ascertained by the report of the secretary of state, and it was enacted more than two years after the publication of that report, and at a time when the legislature either had the knowledge or the means of knowing exactly what the secretary’s report contained; and at that time, the legislature saw fit to classify the municipalities of the state, and they have, by definite and certain language, described Newark as a city of the third grade.

We hold that that act of the legislature, and the admitted fact that Newark, by the census of 1890, as ascertained according to the provisions of section 1547, had a population of between ten thousand and twenty thousand, put Newark in the third grade, second class.

It follows that the relator is entitled to the peremptory writ as prayed for, and it is so ordered.


author: Scribner, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan. Term, 1895.)
    Before Haynes, Scribner and King, JJ.
    CHARLES GABLE v. THE CITY OF TOLEDO.

      Excavation in street left■ unguarded — Liability of city — Independ•ent contractor—
    ■(I). In an action for damages against a city for injury sustained from falling in the night time into an excavation in a public street, which was made under authority of the city, and left unguarded during the night, it is not necessary to show that on previous nights the excavation had also been left unguarded, to prove notice to the city, because the city was bound to see to it, having authorized this dangerous excavation in the street, that it was kept properly guarded, and that the public was properly protected against the dangers incident to an excavation in a public street — a place which the law required the city to keep in a safe condition — although thejwork was done by an independent contractor.

      Same — General rule—
    (2). The general rule is that where the relation of employer and independent contractor exists, the contractor is alone liable for injuries occurring in the progress of the work.“"But this liability is limited to those injuries which are collateral to the work to be performed, and which arise from the negligent or wrongful act of the contractor or his agents or servants. Where, however, the work to be performed is necessarily dangerous, or the obligation rests upon the employer to keep the subject of the work in a safe condition, the rule has no application, but the employer is liable.

      Safety of public streets — Liability of city—
    ■(3). The city is under the statutory obligation to keep its streets open, in repair, and free from nuisance, and it can not cast this duty upon a contractor, so as to relieve itself from liability to one who receives an injury. It is primarily liable for an injury resulting from such dangerous place in a street.

      Misconduct of juror — When to be called to attention of court—
    <(4). Where counsel is aware of the misconduct of a juror, he should call the attention of the court thereto immediately. It is too late to do so after verdict.

      ■Error to the Court of Common Pleas of Lucas county.
   Scribner, J.

This is a petition in error brought tojreverse a judgment rendered by the court of common pleas in an action in which the plaintiff in error was plaintiff and the defendant in error was defendant.

Owing to the peculiar character of the questions involved, and in order to a fair understanding of the grounds upon which we base our disposition of the case,H will read the material portions of the petition.

The plaintiff, Gable,after setting out in the petition that the city of Toledo is a municipal corporation of the first class, and that Huron street is one of the public streets of the city, and after reciting the duty of the city to keep the streets in a safe condition for travel — for general use as a street — -says:

“Yet said city, in violation of its duty as aforesaid, authorized and permitted a large hole and excavation to be dug and made, and a large mound of earth to be placed near the same in the travelled portion of said street, to-wit, on that part of the said Huron street between Jefferson and Monroe streets, and negligently and with full knowledge of the existence thereof, to remain there for a long time without placing around or at the same any safeguards, railings or lights to give notice of said excavation,mound or obstruction, and to prevent persons who with their property aforesaid might use or travel upon said street, from falling upon or into the same, and thereby being damaged and injured, of which there was great and evident danger.
“This plaintiff, upon the night of the day aforesaid, was lawfully driving a horse with harness and a buggy in which this plaintiff was seated (which horse, harness and buggy were the property of the plaintiff and of the value of |200 and above) along said street in the vicinity of said excavation and mound,and without any knowledge or notice thereof,and without being able to see the same by reason of the darkness of the night, when, without negligence and in the use of all due care, his said horse fell over said mound' and into said excavation, and by reason thereof said horse-was killed, the axle of said buggy was broken, and the shafts, wheels and other parts thereof, and also said harness were-greatly damaged,and said harness had to be cut in order to-remove the same and said horse from said excavation; and also this plaintiff was thereby violently thrown from said buggy upon the ground, and two of his ribs were broken, his shoulder was greatly and permanently injured, and his knee and other parts of his body were severely bruised, whereby said plaintiff lost said horse, and said harness and-buggy were greatly damaged, and he became and was for a< long time wounded,sick and disabled, and suffered geat pain and was confined to his house and prevented from attending' to and doing his ordinary business,and was deprived of the-profits thereof, and incurred the liability to pay and did pay large sums of money, together with the sum of three-hundred dollars, for medical and surgical attendance and services and for nursing, care and attendance upon and for himself, in and for the purpose of being cured of his said; wounds and sickness.”

The plaintiff then avers that he gave notice of these facts1 to the city council more than sixty days before the bringing of the action; that they refused to allow any compensation,, and consequently he brought suit against the city to recover damages for this negligence.

The answer admits the existence of the municipality as-charged,and as to Huron street that it was.a public street;, but denies that it-had any knowledge of any excavation or mound having been made, dug or left in said street — of: any mound of earth being placed in the travelled part of said street, and therefore denies the allegations of the petition in that regard, and denies all the other averments of' the petition except that the plaintiff gave notice as stated.

There was a reply filed in the case to this answer, thus-making up the issues to be tried by the court and jury.

There were two trials of this case. On the first trial there was a verdict for the plaintiff, upon which judgment was rendered by the court of common pleas, the case being; taken on error to the circuit court, and that court reversed the judgment of the common pleas, and sent it back for trial.

On the second trial there was a verdict for defendant. A bill of exceptions was takem — 'the motion for a new tiral was •overruled and judgment granted upon the .verdict for the city. The bill of exceptions so taken did not set out the testimony, but set out what it tended to prove as averred in the bill of exceptions, and also set out certain questions that were propounded to one of the witnesses in the case ■and offers to prove on the part of the plaintiff, which offers were rejected by the court; and also set out that a certain juror during the progress of the trial had been guilty of impropriaties which it was claimed vitiated the verdict, and for the matters set out in the oill of exceptions, the plaintiff seeks to reverse the judgment of the court below, the ■overruling the motion for a new trial and the dismissing of his petition.

The bill of exceptions states that ‘"At the January Term, A. D. 1892, of the court of common pleas, before Hon. ■Gilbert Harmon and a jury, evidence was given tending to prove that the defendant had issued a permit to and authorized one Peter Mattimore to dig the excavation described in ■plaintiff’s petition, under and by virtue of the laws and ordinances of the city of Toledo then in force, copies of which permits and ordinances are hereto attached,marked Exhibits ‘A,’ ‘B’ and ‘O’ respectively and made a part of this bill •of exceptions,”

These ordinances are not attached, and for that reason the bill of exceptions is imperfect, at least in that particular; but still, enough remains for us to fairly consider the ■case, and we have proceeded to do so.
“And testimony was also given by plaintiff tending to :show that said excavation was made by said Peter Mattimore under and by virtue of said permit and authority from said city in Huron street. That said Huron street was a ¡public street in the city of Toledo, Ohio, and under the -care and supervision of the defendant. That said excavation was made in said street for the purpose of making a .-sewer connection with the public sewer therein and certain premises abutting thereon, and ■ that said excavation was ■ sixteen feet in depth and three feet in width, and extended from the curb line of said street into the same upwards of ■sixteen feet, and that said excavation had been so dug in -said street for upwards of six days prior to the accident complained of in plaintiff’s petition. And testimony was ■also given by the plaintiff tending to show that the defendant failed and neglected to place or to see that suitable lights and guards were placed in and around said excavation to warn travellers on said street and prevent them from falling therein while travelling thereon on the night of the accident to plaintiff. And plaintiff had also given testimony tending to prove that while driving and travelling on said street in a lawful manner on the 8th day of November, A. D. 1892, and in the night time and after dark of said day, and while exercising due and reasonable care on his part, he fell into said excavation without fault on his •part, and was seriously and permanently injured in and about his person and body. And testimony was given tending to show that the defendant was a municipal corporation ■of the third grade of the first class under the laws of the -state of Ohio,and situate therein. And testimony was also •given tending to prove all the material allegations contained 'in plaintiff's petition herein.”

Now, the bill thus reciting that the proof tended to establish all the material allegations of the petition, and also facts in and of themselves uncontradicted, tended to make ■a clear case of liability on the part of the city, the bill of ■exceptions then proceeds to show that certain questions •were propounded to a witness upon the stand, which were objected to and sustained; that offers were made to prove •the matters to which the questions referred,and these offers were rejected, and that the plaintiff excepted to the action -of the court in these particulars, and by this bill of exceptions preserved whatever rights he had acquired to review the action of the court below. The bill of exceptions then ^proceeds:

“And plaintiff further to maintain the issue on his part offered one Sarah Wilson as a witness and asked heir the following question, to-wit: ‘Do you remember on this night-of the accident of seeing that hole before Mr. Gable went’, into it?’ And in response to the same said witness then and there testified as follows, to-wit: ‘Oh, yes, I saw it-that night; I had to pass right by there to get water; that, is the way I came to see it; and there was no light there;, there was a dirty lamp hung there, a smoked up lamp; you. couldn’t see that they had anything of the kind’. And plaintiff thereupon asked witness, Sarah Wilson, the following question: ‘How many nights before that had it been without a light?’ To which question defendant objected, and the court sustained the objection and ruled out said question, to which action and ruling of the caurt the plaintiff then in due time excepted.”

That question was subject to this objection — which perhaps might be regarded as technical, but nevertheless as a good objection — that it assumed that plaintiff had neglected to place lights there on the evening previous to the-night of the accident. The question is “How many nights before that had it been without a light”. Then the plaintiff made this offer:

“Plaintiff expected and then offered to prove by said question and by said witness and others that no lights, or guards were or had been placed around or near said-excavation for four or five nights immediately preceding-the night of the accident. And plaintiff further to maintain the issue on bis part, asked the said witness, Sarah Wilson,the following question: “You live down there, do-you not?” To which the said witness answered: “Yes, on Huron street.” And plaintiff then and there and for the purposes aforesaid asked the said witness the following-question, to-wit: “Did you see that excavation every evening after dark?” To which question said witness then and-there answered: “Yes: I most always had to bring water- and would see it.” And further to maintain the issues on his part plaintiff asked the said witness, Sarah Wilson, the-following question: “What condition was it in as to guards* during the time this excavation was being dug?” To which question defendant objected and the court sustained the objection, and the plaintiff then and there excepted to the said ruling of the court. And plaintiff then and there expected •and offered to prove by said witness and others that on •every night other than that on which the injury took place, except the first two nights that this work was in progress, .there were no lights about that work or guards to prevent •people from falling into the said excavation; that on other •nights than the one on which the injury happened there •were no lights or guards about that; all of which the court refused' to allow the plaintiff to do, to which ruling and action of the court the plaintiff then forthwith duly excepted.”

The principal questions in the case arise upon these rulings of the court — ms to whether or not the court erred in ■excluding testimony offered by the plaintiff upon the trial tending to show that on certain nights previous to that upon which the accident complained of occurred,the premises were left unguarded and unlighted, with no guards to protect the passers by from falling into the excavation — mo light to warn them of the danger to which they were subjected in passing along the street in the vicinity of the excavation.

Now it is to be remarked that under the statements contained in this bill of exceptions, viz.: that the testimony tended to prove all the material allegations of the petition, •tended to prove that there was an excavation extending from the curb line of the street some sixteen feet into the street, of some twenty feet in depth — it was utterly immaterial as to whether the lights had been placed there the previous night or not. It is entirely immaterial whether or not the city had knowledge of the condition of things which[it[is averred the testimony tended to prove, on the night when the accident occurred, which resulted in the accident offwhich the plaintiff complains; because, from these [statements in the record, plaintiff was bound from the^nature^of'j the excavation to see to it that it was kept in a proper condition,, that reasonable diligence and care were exercised to protect, the public from the danger of falling into the excavation; so,, whether there were lights there on the previous night or not — -whether there were guards there on the previous night or not, is an immaterial issue or question in the case.

If it were a case in which it were necessary to bring to the-city knowledge of the dangerous condition of the street, then the testimony would clearly have been competent and should have been admitted. The authorities cited in the biief of: counsel for the plaintiff in error, as well as the generally recognized principles of law applying in the case, would permit testimony to be given tending to show, if it were a. case in which the city were not bound to iook after the safety of the streets, that the city had knowledge of this-condition, by showing that for several nights previously there had been no lights and no guards; but it was not a-case, according to the facts shown in the bill of exceptions, in which it was necessary to show that the city had previous-knowledge of these excavations and of the dangerous condition of the street. The record states, as I have already said, that this dangeorus excavation was made there with the authority, consent, and the permission of the city au. thorities. They were authorizing, permitting and consenting to an excavation upon a public street which was necessarily dangerous to the public. They were bound to see to it that it was kept properly guarded and in a proper condition to protect the public against loss. It was not necessary, in order to entitle the plaintiff to recover, that he-should show that they had knowledge that the excavation was being allowed to remain in a dangerous condition; it was not necessary for them to show that on previous nights-it had been left unlighted and unguarded, in order to fix upon the city liability for an accident which occurred upon that night; because,as I have said,they were bound to see to-it, they having authorized this dangerous excavation in the street, that it was kept properly guarded, and that the public were properly protected against the dangers incident to an excavation which by their authority and consent was being made in a public street — a place which the law required them to keep in a safe condition.

There are several cases in which this doctrine is*held in Ohio, notably in 38 Ohio St., 50; 40 Ohio St., 465; 47 Ohio St., 210; 27 L. B., 91 — a case decided by the supreme court which went from Oleveland.

In the case in 41 Ohio St., 465, Circleville v. Neuding, the syllabus thus states the law:

“Where a city contracted for the construction of a cistern 18 feet wide and 24 feet deep, in a street, and before the cistern was completed a horse fell into it and was killed, for want of sufficient protection around and over the excavation, to guard animals in the proper use of the street from danger. Held: That the city was liable for the loss of the horse, although it did not reserve or exercise any control or direction over the manner of doing th6 work, except to see that it was done according to specifications which were a part of the contract.”

In the opinion this is said:

“It is contended on behalf of the city that it is not liable for the loss of the horse, because the cistern was in process of construction by an independent contractor when the injury occurred. The relation between the city and Brandt (that is the contractor) was clearly that of employer and independent contractor, and the rule is generally that for injuries occurring in the progress of work carried on by parties in that relation, the contractor alone is liable. But this liability is limited to those injuries which are collateral to the work to be performed, and which arise from the negligent or wrongful act of the contractor or his agents or servants. Where, however, the work to be performed is necessarily dangerous, or the obligation rests upon the employer to keep the subject of the work in a safe condition, the rule has no application. This distinction has been taken in this state in a number of cases *■ * * • In this case the cistern contracted for was to be built in a street, and to be 18 feet wide and 24 feet deep. Such an excavation in a street, unless protected to guard persons and animals using the street from falling into it, was necessarily dangerous. The city was under the statutory obligation at the time of the accident to keep its streets open, in repair, and free from nuisance, and it could not cast this duty upon a •contractor, so as to relieve itself from liability to one who should receive an injury. It is primarily liable for an injury resulting from such dangerous place in a street. If it has required the contractor to assume the risk of such damage, it may have a remedy against him. But the public in the use of the streets may rely upon the legal obligation of the city to keep them free from dangerous places, or if such places become necessary to be made in the course of an improvement or work necessary or proper for the city to do, that it shall so guard them that no injury shall result in the ordinary use of the street.”

This same doctrine is stated in very strong terms in the case of R. R. Co. v. Morey, 47 Ohio St., 207, On page '216, it is said:

‘‘There was evidence, therefore, from which the jury could find that the railroad caused this ditch to be dug in the particular manner that the work was done, and if the jury so found, it was liable for the consequences, whether it did so by its own servants or by the hand of an independent contractor.”

(There was a ditch dug by the railroad company in a public street, with the consent and concufrence of the public authorities, for the purpose of laying pipe, and an accident occurred.)

It was the duty, therefore, according to the established doctrine of the supreme court of this state, of the city, when it issued to the parties named in this record the permit to make this excavation, and they went forward to make it, to guard the excavation against danger to these parties. It was bound to see to it that this necessarily dangerous work was so done as to protect the party from liability to danger in the use of the street, and, as I have already said, it mattered not, so far as this liability of the city was concerned, whether it knew that guards had not been provided, or lights had not been placed there, to warn and guard the public — it was bound to know whether it was done or not. We therefore think it was entirely immaterial to the case to show that this excavation had been left unlighted and unguarded for several nights previous to this accident.

The testimony, as I have said, is not set out in the record. No part of the testimony introduced on the part of the defendant is set out in the record; but we are bound to presume, in the absence of a showing in the record, that the testimony on the part of the defendant overcame that introduced by the plaintiff as to the facts upon which the plaintiff based his claim for a recovery; and for this reason we cannot assume that the verdict of the jury was contrary fo the evidence, or that the court erred in overruling the motion for a new trial.

As to the objection that a juror had acted improperly during the progress of the trial: it appears from affidavits introduced in the case that while the trial was in progress some little sparring had occurred between the court and a witness, and perhaps one or more of the counsel may have been slightly involved in the disagreement, But however that may be, the court took action upon the matter; and subsequently, during a recess, one of the jurors conversed with' counsel for the plaintiff in the case,and made remarks tending to show that he felt a little bit disturbed at the manner in which the court had acted, and he expressed himself that the court had acted rather hastily in its ruling and action with regard to the trouble with the witness in the case; but he said nothing as to the merits of the controversy in any way, shape,or manner; but whatever he did say, had reference to the trouble which occurred during the trial; but it nowhere appears that this conversation, although it took place with counsel for plaintiff during the trial, was reported to the court, or that any action of the court was requested upon the matter. The court was not advised until after the trial had taken place, so far as the record shows, of this conversation, although it was known to plaintiff’s counsel that it had taken place with him. It does not appear that the plaintiff or his counsel called the matter to the attention of the court, or that any action on the part of the court was requested. For that reason we think it is too late, if it would have been any ground for interference — that it is too late, after a verdict had been returned in the case, to make this matter any cause for interfering with the verdict.

The judgment of the court of common pleas will therefore be affirmed.


author: Wilson, J.

text:
    (Second Circuit — Darke Co., O., Circuit Court
    Oct. Term, 1898.)
    Before Shearer, C. J.; Summers and Wilson, J J.
    CARPENTER BROTHERS v. JOHN O’CONNOR ET AL.

      Foreclosure suit in state court — After petition in voluntary bankruptcy filed by the mortgagor, the trustee in bankruptcy entitled to the property—
    Where a suit is brought to foreclose a mortgage in the court of common pleas, and thereupon the mortgagor files his petition to be declared a bankrupt, a motion made by the mortgagee in the state court for the appointment of a receiver after such petition in voluntary bankruptcy was filed by the mortgagor,"can not be entertained, but the state court should order the property mortgaged to be turned over to the trustee in bankruptcy.
   Wilson, J.

This was an action m the court below brought by Carpenter Bros, to obtain a judgment upon a promissory note and foreclosure of a chattel mortgage; also to marshal liens against the defendant O’Connor’s property.

The petition in the common pleas court was filed on the 10th day of September. On the 12th day of September following John O’Connor filed his petition in voluntary bankruptcy in the United States district court. On the 14th of September thereafter the plaintiff, Carpenter Bros., filed a motion with due notice to the parties interested for the appointment of a receiver in the action pending in the common pleas court. On the 19th of September, an adjudication was had upon the petition in bankruptcy, and the defendant O’Connor was declared a bankrupt. On the 1st of October following, the motion for the appointment of the receiver came on to be heard in the state court, and the receiver was appointed. On the 3rd of October a trustee in bankrupcty qualified in the bankruptcy court. A motion was then made by the trustee in the case in the state court to have the property of the bankrupt turned over to him. This motion was sustained, and the action of the court in sustaining the motion is assigned for error.

Under the constitution of the United States, congress is vested with plenary power to enact a bankrupt law. There is but one limitation upon the power of congress in that behalf, and that is, that the law shall be uniform.

The law in question is not attacked in this case for want of uniformity. There is, in our opinion, no constitutional question raised in this case.

The parties are simply seeking the interpretation of the statute to which, when correctly interpreted, they must yield, for no other reason than that it is thus written in the law.

It is not a case in which there is conflict of jurisdiction as between courts of co-ordinate powers where you are called upon to determine which shall have possession of the property. The court in bankruptcy has exclusive jurisdiction to take and administer the assets of the bankrupt — pay his debts in so far as the assets will pay them, and discharge him if he is entitled to a discharge from further payment.

The state court cannot do this. It cannot determine, at the outset, whether or not the defendant is a bankrupt, nor can it discharge him from the further payment of his debts after his property has been exhausted. So that it is a mistaken idea to say that the state court and the court in bankruptcy are co-ordinate courts, each having jurisdiction over this subject matter. The state court has •nothing to do with the proceedings in bankruptcy.

The order of procedure in this case should be under 'the statute as follows: When the petition in bankruptcy Was filed by the defendant, all proceedings in the state feourt should stop. In other words, in the language of 'the Bankrupt Act as contained in section eleven, “The proceedings shall be stayed.” This is mandatory. The state court has no right to proceed further in an action there pending until the petition in bankruptcy has been adjudicated. When that has been done, the case may be further stayed in the state court at its discretion. But whether it is stayed or not, the plaintiff in the state •court cannot obtain judgment against the defendant for any costs made after the petition in bankruptcy is filed, nor can he obtain judgment in the state court for any interest upon his claim accruing thereafter. The running of the claim and all costs incident to the procuring of a judgment against the claimant are arrested at once upon the filing of the petition in bankruptcy, and if the defendant is declared a bankrupt, the plaintiff in the state court is entitled to receive only his claim with interest and costs 'to that date. He may pay the costs in the state court, which he rightfully made in the prosecution of his claim •against the. bankrupt in that court, and present them to the trustee in bankruptcy to be allowed as a proper claim against the assets in the bankrupt court. His rights are protected in the same degree in so far as the exemptions under the homestead and other laws are concerned. The state laws govern entirely in the bankrupt court in that regard. If under the laws of the state the plaintiff’s claim precludes the allowance of a homestead or other exemption, so will it when it is presented to the trustee in bankruptcy, and all of the property of the bankrupt which is not exempt under the laws, of the state from the claim of the plaintiff, must be turned over to the trustee in bankruptcy and administered upon by him.

The plaintiff may go on, the common pleas court not having seen fit to further stay proceedings in that court, and reduce his claim to judgment. But it will be at his own cost in that court after, and he will be entitled to in? terest only to the date of filing the petition in bankruptcy, After he has reduced his claim to judgment, he must pre? sent it to the trustee in bankruptcy and have it there allowed and paid out of the assets in the hands of the trustee in that court in the order of its priority.

This is so because the bankrupt law passes the title .of the property of the bankrupt to the trustee in bankruptcy, as from the date he is declared a bankrupt. There is no alternative to this proposition. The property must go there to be administered upon, and the plaintiff in the state court must seek relief in that court, which has exclusive jurisdiction in bankruptcy and which alone can furnish the relief to which both parties are entitled.

With this view of the law we are of the opinion that the court did not err in ordering that this property be turned over to the trustee in bankruptcy. He was entitled to come into court for the purpose of claiming the property. He may, indeed, come into that court, and, as trustee in bankruptcy, contest the claim of the plaintiff in the state court, or. it may be contested in the bankrupty court. So that the rights* of the parties will all be preserved by the procedure which has been followed by the court thus far.

The appointment of the receiver was irregular, because the United States bankruptcy act by its terms stays all proceedings after the filling of the petition in bankruptcy untiljthe same has been adjudicated. The application for the appointment of a receiver was made between the filing-of the petition in bankruptcy and the adjudication on that petition, and the proceedings under the motion were unauthorized.

But in as much as the court has taken the property from the receiver and given it to the trustee in bankruptcy, the receiver is functus officio, and that error is not prejudicial at the present stage'of. the case. Therefore we grant no relief to the defendant in error on his cross-petition in error.

Judgment accordingly.


author: Caldwell, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan.Term, 1898.)
    Before Marvin, Caldwell and Douglass, JJ.
    (Sitting in the First Circuit.)
    RYAN & MALLOY v. THE MIAMI VALLEY R. R. CO. et al.
    Ü Statutory liability — Settlement with part of creditors — Bights of remaining creditors—
    The stockholders of an insolvent corporation, in settlement of their statutory liability which, if paid in full, would not have fully paid the creditors, made an arrangement with the creditors Whereby the latter agreed to accept a certain percentage of such statutory liability in full settlement of their claims. One creditor did not take part in such arrangement, aud after-, wards brought suit, asking that his claim should be paid in full, as it appeared that after paying the percentage agreed upon to the other creditors, the balance of the statutory liability of the-stockholders, would be sufficient to pay his claim in full. Held, that such creditor was entitled only to such percentage of the total amount of the statutory liability as he would have received if the statutory liability had Deen paid in full and divided pro rata among all the creditors on their claimsi
   Caldwell, J.

This was an action brought by the plaintiffs as creditors of the defendant to subject the stock holders to the payment of their stock liability under the statute of the state. I will not undertake to go through with a history of the case, but simply state this: that at a certain state of the proceedings in this case, the creditors, all but one, Ferris, made an agreement with the stock holders that they would acept from the holders of the common stock of the company, 75 per cent, of the amount that they would, or could, be required to pay, and from all the sotck holders holding the preferred stock, 40 per cent., and enough of them signed this agreement, so that the creditors concluded to accept that- amount and proceed no further and waive all matter of error up to that time, and that that settlement decree be a final decree so far as they were concerned in the case. But one creditor was not included in the arrangement, and there was considerable litigation to determine whether or not he was bound by the agreement; but it is settled now, and not involved therefore in this case, that he was not bound by the compromise decree. He took however some payments that were made, under this compromise agreement, but he says he took those, not knowing of the compromise agreement, and accepted them as though his claim was simply being paid up by reason of some decree, but that bears on the question whether he is bound or not, and has no place here.

He now seeks to recovar from the stockholders his claim, and the question in dispute is simply this: He says that now his claim can be paid in full, although, if all the debts were paid in full, the stock would not pay them; yet, certain of the stock holders having paid off a number of the creditors for less than they would have been entitled to if the full amount of their claims had been paid, there is now left enough to pay his claim in full, providing all the stock holders who are solvent are assessed up to the full amount, of their stock, and his claim is that he is entitled to have such an assessment made upon the solvent stockholders of his company as will pay his claim, if not in full, as nearly as the full assessment of all the stock will go to paying it, but there is no doubt but what it will pay it. On the other hand, it is claimed that the facts in this case are" such as that he could not in any event get more than his pro rata share with other creditors,and the facts are such now that it shows that he is not really entitled to as much as the others got, at least not any more, and we are to follow one or the other of these theories, or else take a middle course some where. Now, we take a middle course. We do it on this theory: This action against the stock holders is a joint action. When you come to a judgment that is a several judgment, but the action is joint, and the creditors and stock holders should all be kept together in a case of this kind until there is a final conclusion as to all, and final judgment, and the joint interest of the creditors and stockholders is the real basis of the decree that should be made in such a case,although that decree, when made,is made several as to the' various stock holders, I need not discuss why this is so. It is enough to say that our supreme court has so held repeatedly. We should therefore treat the claim of Mr. Ferris as though every other creditor was in this suit uncompromised, because he can not acquire any new rights by reason of a settlement of the others. The fact,that one man says I will take less than my claim, can not increase the amount that another can claim in a joint action of this character.

We therefore will allow this decree to proceed in this manner. Mr. Ferris may now have whatever he would be entitled to were all the other creditors yet in this action, and the amount that each one would be entitled to, would be the amount of his original claim with interest on it up ■■ to the present time, or any time that you may fix for this ■ decree to take effect, the first day of the term. That is all ■ we think he is entitled to in this case. That can be ar- - rived at by computing the interest on every claim as I have stated, by computing the interest on the full amount of stock of every solvent stock holder, whether of the common stock. or preferred stock, from the time this action was commenced up to the time of the decree. Now, as counsel say, and I have not looked over the figures to see if that is true, that that would not be enough to pay all those creditors in > full, it would fall short of that. That seems to be agreed in the case. That being true, each creditor would get less than his claim, but each creditor would get the same per1 cent of his claim. Whatever that per cent, is, it would be ascertained by dividing the amount of stock and interest on it from the time of the suit and by dividing the amount of' tbe claims and interest, you get the per cent, each man could obtain on his claim. That percent, in this case Mr. Ferris is entitled to, and in making this computation, it is: necessary to taxe all the solvent stock holders as found by the referee in the last report, the one we have before us,-, bringing it up substantially to the present time. I see that he has found that all the stock holders that were found solvent in 1884 are still solvent, and then he adds a list to-that, and in determining the present or the amount that M!r. Ferris is entitled to in this case, you will take all the-solvent stock holders, those who were solvent in 1884, and those who are solvent now, that will increase the amount he recovers somewhat. Not a great deal over what he would-' have recovered if he were in in 1884, but his claim has; never been adjudicated, the amount has never been determined,and we are determining it as to him the first time now,-. and his claim must therefore be determined upon the basis ■of the solvent stock holders at this time. That settles the rule as we lay it down, for the amount that he can recover.

But from whom shall he recover this? There are three classes-of solvent stock holders according to the referee’s reports. We are not counting any insolvent stock holders at all, but there are three classes of solvent stock holders. Those who have paid nothing, which I presume includes all that he has added that are now solvent, and that were not solvent in 1884, and it includes some who signed the compromise agreement but dil not pay under it, as he states in his report. I shall put together in class one those who ■have not paid anything. Then there is a class holding preferred stock that never paid anything but 40 per cent. Then here is a class holding common stock that have paid '75 per cent, of their stock. These are the three classes. Evidently it woud be inequitable between these stock holders to require them to pay all equally on this Ferris claim, and it is better for us to adjust this among the stock holders than to have the sto;k holders have future litigation and adjust it among themselves, for future litigation would ■be such that no one would undertake to pursue it. It would lead to a multiplicity of suits, and therefore we will undertake to adjust it here. Now, then, those who have paid none, if we would require them to pay until they have paid ■as much as those who paid 75 percent., it would be inequitable to require them to pay that much while there are others that have only paid 40 per cent. If we require them to pay the 40 per cent., and then put the 40 per cent, into the ■other class, and require the two classes to pay until they ■have paid the same per cent, on their stock as those who ■paid 75 per cent., those who have paid 40 per cent would •say that is inequitable, for it is taking away from us the advantages we got over those who paid 75 per cent.; it is staking away from us the advantages we got under the compromise decree, and therefore it is inequitable as to us.

This question has bothered us a good deal, and I am not surprised the attorneys got bothered when they come to draw their decree, but we have to make some rule, and so we have made this rule: Take all the stock holders who have^paid 40 per cent., and say, there is 100 of them, and multiply that to see how much they have paid. Suppose they paid 20 dollars on each share, that would make 20 times 100. Then there are the common stock holders that have paid 75 per cent. Take the shares of stock that paid 75 per cent, and multiply it by the amount that each share paid. 75 per cent, of 50 dollars. Multiply it by that. Now, add together, what the 40 per cent, men paid and what the 75 per cent, men paid and divide it by the whole number of shares that paid, common and preferred, and that will give the average that those parties paid. Draw the decree so that those who have paid nothing, of the solvent stock holders, shall pay up until they reach that average; then add all that is required beyond that to be paid, pro rata on each share of preferred and common until Mr. Ferris’ debt is paid

I don’t know how you draw your decrees here in this ■county. They vary in almost every county. I suppose that Mr. Paxton’s client should not be required to take upon himself the loss of any of those stock holders who can not pay. I suppose there is a few of those new ones that have been added from whom you can not collect. Now his client .should not be required to pay that loss, because all these ■parties are sureties for the payment of his claim, and he has • a right to look to them for it, and if he can not make one surety pay it he'ought to be able to make another, and make provision in your decree according to the way you draw those decrees in this county for a condition of that kind. In some counties they draw it so, if they can not collect •after making due process of Jaw upon them, and proper effort, that then the amount that one should have paid will, be collected of the other stock holders.

Paxton, Warrington & Boutet, for John Ferris.

Gorman & Thompson, for Stockholders.

It is very difficult to get.a decree of this kind, however, that is definite and certain as to how much each man should pay, but do that in your accustomed way here in this-county, whatever it is.


author: Douglass, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Marvin, Caldwell and Douglass, JJ.
    (Judges Marvin and Caldwell of tbe Eighth Circuit; Judge Douglass of the Fifth Circuit.)
    CATHERINE JANDER v. THE MUTUAL LIFE INSURANCE COMPANY.

      Life Insurance — Agreement for paid-up policy—
    A “note” attached to a policy of life insurance in which the company agrees, in case of failure to continue to pay premiums, to-give a paid up policy in an equitable amount, is not an independent contract, but part of the conditions of the policy.

      Paid-up policy demandadle during life of policy on surrender of receipted policy — Agent’s power to release conditions — Excuse for failure to receipt policy—
    A ten years’ policy provided that it should be void iffany premium is not promptly paid, but that the company will give a paid up policy for an equitable amount if demanded and the policy properly receipted is surrendered while the policy is still alive. The policy was payable to the wife of the insured, or in case of her death to the childien or their guardian. 'After five years the insured failed to pay further premiums. After the death of the insured his wife sued for a paid-up policy, claiming that demand for a paid up policy had been made of the agent of the company and the policy, but not receipted, surrendered to him at the proper time. Held, the agent could not waive any of the conditions of the policy, as the policy on its face expressly stated so. Held further, that the fact that at the time of such demand and surrender the insured was still alive and that the wife could not receipt the policy, as the policy being payable to the children if she did not survive. •the insured, it could not be known whether she or the -children would >be the beneficiary of the policy, did not excuse •the failure to surrender the policy receipted by her or by a, .guardian appointed for that;purpose for the children.
    Error to the -Court of Common Pleas of Hamilton county.
   Douglass, J.

This action is based upon a policy of insurance of the defendant company dated Februaryy 15th, 1866, insuring the life of the husband for the benefit of the wife, if living, and if not living, then of her children, or their guardian for their use, with a guaranty for a paid-up policy endorsed on the policy denominated “note”.

I will read the note. The note is: “On the surrender ■of this policy” — giving the number — -“duly receipted, and without previous change in the mode of paying premiums, a paid-up policy on the life” — then giving the name —“will be issued for an equitable sum which, with additions for two years, shall exceed two hundred dollars, and after payments for five years, shall exceed five hundred dollars”, and so on.

A further provision of the policy that is important and short, is:

. “If the said premiums shall not be paid on or before, the ■day before mentioned for the payment thereof at the office of the company in the city of New York, unless otherwise ■expressly agreed in writing, or to agents when they produce receipts signed by the president and secretary, in every such case the said company shall not be liable for the payment of the sum assured, or any part thereof, and this policy shall cease and determine.”
“Third. In every case where this policy shall cease and determine and be null and void, all payments thereon shall be forfeited to this company.”

This policy was issued in February, 1866, Premiums •were paid for five years and three months — it was a regular ten year policy, — and this carried it up to February, 1871; and the insured died in 1894. .

It is argued here that the guaranty for a paid-up policy, this denominated “note”, is a separate contract. We have-examined this carefully, and we cannot subscribe to this, view. We think that this note and the face of the policy, ■ — -it is all one paper, — -is one contract; that they must be-construed together.

The first objection that is seriously urged is the admission of the evidence of Hickock. The argument is that he-was not competent to testify on the subject matter about which inquiry was made as to what was the custom of the-company during certain years, and that that was not germain to the question in hand. We think that is true, but no answers were elicited, and there could be no prejudice — those that were elicited could not be prejudicial. We examined, it in that view very carefully.

And an objection was made to the deposition of one Pinney, I believe. The objection as made was one that could-not avail. No specific objections were made; there were-some preliminary questions that were competent and proper, and that kind of an exception on a general objection to the entire deposition or testimony of the party, could not avail her.

But if this is not well taken, the evidence of both these-parties could not affect the question presented here, find that is as to the weight of the evidence in this case. This-case was submitted to the court without the intervention of a jury, and if all of their evidence had been omitted in this-case,it would not have affected our view.

Now it is said that there was a demand made for a paid-up policy. It will be remembered that five years’ and one-quarter premiums had been paid on this ten years’ policy running from 1866 to 1871, and that a demand was made-of the soliciting agent. That is in proof; there is such evidence.

The soliciting agent has certain duties to perform, and* under the Ohio authorities, at least, he may bind the company in reference to what apoears to be within the apparent scope of his authority under certain circumstances. But here was an absolute provision right on the face of this policy that was notice absolute to the party that the soliciting agent had no such right. Under the testatum clause, is the following: “Agents of the company are not authorized to make, alter, or discharge contracts, or waive forefeitures”; and the receipts that these parties received showed conclusively the same fact. They had notice before them in all these ways, and however the testimony may vary on that proposition, and if a demand of the soliciting agent was established, it would not amount to a proper demand for a paid-up policy.

The conditions of the note or guaranty were not complied with in regard to receipting and surrendering the original policy. The policy was not receipted, and no offer was made to receipt it in a legal sense at this time.

Now it is claimed that this could not be done until the death of Jander in 1894, because it could not be known who the beneficiaries would be. This was argued at great length,and very ably argued: that here was a policy issued on the life of the insured, payable to the widow if she survive the husband, and if not, then payable to the children or to their guardian for their use, and it is said that because of the contingency of unborn children no such receipt could be made that would be effectual and binding, and that no such surrender could be made. This argument is pressed as the chief contention.

Now, while we think this is a close question, yet from the authorities that have been cited and that we have examined, —some New York and Ohio authorities, and notably the case in”44 Ohio St., 656, we think that this point is not well taken. The policy was payable to the wife, making her thejbeneficiary in the event that she survived her husband, which she did, and she became the sole beneficiary; and the contingency of the children having an interest was cut off as a matter of fact. That, however,could not be seen in 1871, and that is the contention; that it was payable then -to the children,or to the guardian for their use. We think that it was possible, and that it was proper and right, that the guardian should receipt the policy- — these children would lose everything if he did not act,and they would be benefited if he did act. He had no funds in his hands — there is no proof that there was anything of that kind that a guardian could have used to have paid up these premiums and kept this policy in force, and we think that it was a possible and that it was a proper thing to do to have a guardian, and have that guardian, if that be essential, do the only thing that could result in any benefit to the wards, and that was to receipt and surrender this policy and get a paid up policy. They did not avail themselves of that, and we think that was clearly contemplated by this contract. Further than that, if the wife had receipted this policy and made a surrender as required here by its terms — -she is the only beneficiary as it turns out as matter of fact — no defense could have been made by this company when she now alone prosecutes this suit as she does. The contingency in reference to the children having interests not having arisen, and she being the sole beneficiary, no defense could have been made that that was not a proper surrender.

So that, while we recognize that it is a debatable proposition, we conclude that this proposition is not well taken.

Now, the 44 Ohio St. was referred to. That was a case - where the husband sought to surrender the policy, and it • was there held that the insured could not, because of the •vested interest of the wife, surrender the policy unless he ■'was the agent of the wife, and it was clearly shown that he ■ was not, and it could not come within that claim of agency.

Now it results that no demand for a paid up policy was made until after the original policy had elapsed for non-payment of premiums; and if our view be correct as to the essential point urged here,and as we have held, then the court was right in its judgment below, and its judgment should be affirmed.

W. W. Prather, for Plaintiff in Error.

Stephens & Lincoln, for Defendant in Error.


author: Marvin, J

text:
    Eighth Circuit — Cuyahoga Co.,O., Circuit Court
    June Term, 1898.
    Before Hale, Marvin and Caldwell, JJ.
    THE CITY OF CLEVELAND v. DENISON.

      Contract by which city obtains ^property — Liability, although contract not authorized by law—
    Where a contract is entered into between the city and the owner of a sub-division, that the owner should lay water pipes in some streets dedicated and accepted in such sub-division, which the city would adopt as pan of its water works system and pay for them, the city having taken possession of the property and using it, and it being impracticable to restore the property to the other party, is liable for the expense of the pipes, although it was not legally authorized to enter into such a contract,
    Error to the Court of Common Pleas of Cuyahoga county.
   Marvin, J

The case of the City of Cleveland, plaintiff in error, against L. T. and R. F. Denison, defendants in error, is a case where the two Denisons brought a suit against the city of Cleveland, in the court of common pleas of this county, and a jury was empanelled, and the case was submitted upon an agreed statement of facts, and the court instructed the jury to return a verdict for the plaintiffs upon the facts.

It is sought in the proceedings here to reverse that Judgment, motion for a new trial having been made and overruled by ¡the court of common pleas.

The facts are, that the plaintiffs below, being the owners bf certain lands in the village of West Cleveland, platted those lands and laid out streets which were dedicated to and accepted by the municipal corporation; thereafter they place water-pipes in certain streets, making an agreement with the Board of Trustees of the Water-works for the village of West Cleveland that if thebe defendants in error would place such water-pipes in these streets, they would be attached to the pipes of the regular water-works system of the village and made a part of the water-works system, and that the village would pay for these pipes; perhaps no time was fixed, no limited time; but they would pay for them in a reasonable time. Subsequent to this arrangement, pipes were put into the streets; they were attached to the regular water-works pipes, and became a part of the water-work system of the village; rants were obtained for the use of them by the village, and thereafter the village, by the proper legal proceedings, was annexed to and became a part of the city of Cleveland. Nothing has ever been paid by the village for these water-pipes, for the laying of them, an amount of some 11,300,00; and it is agreed in the agreed statement of facts, that the price claimed by the Denisons is a reasonable and fair price for that which was furnished by the Denisons, and that some •two or three weeks prior to the annexation of the village to the city, a resolution was adopted by the council of the village in these words:

“Resolved, That the bill of L. T. and R, F. Dennison for the sum of $1,362.80 for water-pipes laid by them in Davis, Evergreen and Ursula streets, be received, placed on file, and is hereby found and declared to be a valid ‘debt against the village of West Cleveland.
“Adopted February 19th, 1894. F. P. Thomas, Clerk.”

Another of the facts agreed to in the statement of facts is, that “by the terms of said annexation the city of Oleve-r and became liable to pay all the indebtedness and liabilities of the village of West Cleveland.”

It is urged on behalf of the plaintiff in error that the village of West Cleveland never owed the Denisons for this pipe; that by reason of section 2702 of the Revised Statutes of Ohio, the contract made between the water-works and the Denisuns was void; tha"t there was no liability on the part of the village and, therefore, there is none on the part of the city.

Without considering the question raised by the statute which I have mentioned — section 2702 — and without conT sidering another question that was urged here on the part of the defendants in error, to-wit, that whether that de? fense could have been made or not by the village, it can not be made by the city. That was urged on the part of the defendant in error upon the ground that the city has shown by these ten agreed facts, that by the terms of annexation the city became liable to pay all indebtedness and liabilities of the village, and the village having passed a resolution as I have read, the city is estopped from saying that it is not liable to so pay. Without conr sidering whether that be the law or not, we think there is another principle which was urged here upon the part of the defendants in error, which settles this case and which settles it in favor of the defendants in error, and that is, that the village having received the property and enjoyed it, had the benefit of it, passed it over to the city which is in the enjoyment and has the benefit of it; that the city is bound to pay, and the village would be bound to pay if suit had been brought for what that property is worth; and it is upon that proposition that the court bases its affirmance of the judgment, and without referring tp other propositions. This, we think, is so completely set? tied by the authorities found and cited .in 39 Kansas, in the case beginning on page 37. There is another case in the same authority, cited to us on the hearing, but this case quotes from many more authorities on the case How being considered. I now read one or two of them.

In 107 U. S., 348 to 355, Chapman v. County of Douglas, a case where the county of Douglass, Neb., entered into an agreement with a party for certain lands for a poor-farm, and such lands were therafter used as such, and part payment was made; finally the county resisted the payment on the ground that the contract was unauthorized, and, in the opinion, the court used the following language:

“In the present case, however, it was not the understanding of the parties that the vendor should await the collection of taxes, as prescribed by the statute, for the payment of the purchase money, but, on the contrary, there was an agreement for the payment in a definite time, without regard to the condition of the county treasury, and for security by way of notes and mortgages. The agreement as we have assumed,so far as it relates to the time and mode of payment, is void; but the contract for the sale itself has been executed on the part of the vendor by the delivery of the deed, and his title at law has actually passed to the county. As the agreement between the parties has failed by reason of the legal disability of the county to perform its part, according to its condition, the right of the vendor to rescind the contract and to a restitution of his title would seem as clear as it would be just, unless some valid reason to the contrary can be shown.
“As was said by this court in Marsh v. Fulton County, 10 Wall. 676, 684, and repeated in Louisiana v. Wood, 102 U. S., 294, ‘The obligation to do justice rests upon all persons, natural and artificial, and if a county obtain the money or property of others without authority, the law, independent of any statute, will compel restitution or compensation.”

In the case before us, there is no such thing as restoring the property back to the Denisons. The property has been accepted by the city, and is a part of the water-works system of the city of Cleveland and was also a part of the water-work system of the village. It is a case where there ■can be no restoration, and unless the equitable right of the parties who furnished this property, can be wrought •out by requiring payment to be made, they (the Denisons) would be left remediless, and the defendant would be left with the property, and pay nothing for it,

Norton, Ford, Boyd & Growl, for Plaintiff in Error.

Squire, Sanders & Dempsey, for Defendants in Error.

There are other cases cited in this 39th Kansas that we would like to read from, but, without stopping to do so, we hold that the court was right in instructing the jury to return a verdict for the plaintiffs, because the defendant had the property of the plaintiffs; it had a right to it, but whether it pursued the course pointed out by statute, having the property, it may yet be liable. The agreed statement of facts shows that the contract of the parties was fair.

The judgment of the lower court is affirmed.


author: Smyser, J.

text:
    (First Circuit — Licking Co., O., Circuit Court
    March Term, 1898.)
    Before Adams, Douglass and Smyser, JJ.
    O. A. MYERS et al, v. ALBERT B. LUCAS.
    Pleading— Demurrer — ■
    (1.) A demurrer to the petition for want of jurisdiction of the court over the person of the defendant or the subject matter of the action, is only admissible wh'ere the want of jurisdiction appears on the face of the petition.

      Corporation chartered by special statute for limited number of years, continuing to act after term expired—
    '(2.) A corporation chartered under a special statute for a certain number of years, but which after the expiration of the time for which it was so chartered continues to exercise its corporate powers, may still be treated as a corporation.

      Sick benefits — Testimony as to condition of applicant—

    (3.) Where-plaintiff claims sick benefits to which he would be entitled from a lodge in case of sickness disabling him 'from work, his own testimony as well as that of witnesses not experts, as to his physical condition, is admissible, Questions to the examining committee of the lodge as to the manner of their proceeding etc. are also competent.

      Regulation of order precluding resort to courts—
    (4.) Regulations of orders precluding a member from going into the courts to assert a right, but must submit to the tribunal provided for by the order of which he is a member, are void.
    Error to the Court of Common Pleas of Licking county.
   Smyser, J.

The case of O. A. Myers et al. v. Albert B. Lucas, is here on a petition in error to reverse the judgment of the court of common pleas. The issues made up, and on which the case was submitted to the jury, were an amended petition, an answer and aNeply. Numerous errors are assigned. The first error assigned is that the court of common pleas erred in overrulingjCthe demurrer of the plaintiff in error to the reply and the amended petition. The amended petition recited the fact that on the 26th of February, 1845, by a special act of the legislature, Lodge 34 (I will call it the Odd Fellows’ Order) was incorporated; the charter -was to expire in thirty years by limitation. That notwithstanding the expiration of the time, the association had continued in the operation of the business for which the association was originally incorporated. It sets out the objects of the order. That the plaintiff, Lucas, was a member of this order; became a member in 1884 or 1885; and that he was such a member as was entitled to sick-benefits under certain circumstances. That, while a member in good standing and entitled’jto benefits, without his own misconduct, he became sick and disabled, and entitled to benefits at the rate of four dollars^and a half a week. That he had partial paralysis; that he partially recovered from that; recites the fact that he did receive benefits part of the time; that he-had a second stroke; a demand for benefits and a refusal to-pay by the association; and asks a money judgment. To-that a general demurrer was interposed. It was more than a general demurrer, I might say. First: That the court', has no jurisdiction over the persons of the said defendants, or either of them, or the cause of action set up in said amended petition. That said amended petition does not-state facts sufficient to constitute a cause of action against-said defendants, or either of them.

Section 5062: “The defendant may demur to the petition only when it appears on its face either: 1. That the court has no jurisdiction of the person of the defendant, or-the subject of the action.”

It would require a good deal of fine figuring to ascertain-just how it is apparent on the face of this petition that the-court has no jurisdiction of the subject matter or of the-persons, in view of what we shall say hereafter. It was a-, money demand, set out in the ordinary language provided for in section 5060:

“The first pleading on the part of the plaintiff shall be-the petition, which must contain: 1. The name of the-court and the county in which the action is brought, and. the names of the parties, followed by the word ‘Petition’. 2. A statement of the facts constituting the cause of action, in ordinary and concise language. 3, A demand of" the relief to which the party supposes himself entitled;” And so on.

The plaintiff alleged in his petition that all the members-of this association were not brought before the court; that it was impracticable; but he did set out, in ordinary and1 concise language, the facts constituting his cause of action, and it was not apparent-upon the face of the petition that the court had not jurisdiction of the subject matter; neither-was it apparent upon the face of the petition that the court had not jurisdiction over the person of the defendant- — this-dodge, corporation, association, or partnership, orjwhatever you may please to term thisjdefendant. So we think that •the demurrer was properly overruled.

But, it is suggested that all of the defendants were not properly before the court. We ought to construe section 5008 in connection with 5060.

“•When the question is one of a common or general interest of many persons, or when the parties are very numerous, and it is impracticable to bring them all before the ■court, one or more may sue or defend for the benefit of all.”

. That does not change the rule in section 5060. He shall • state the facts in the same ordinary and concise language, and give the court the reason for not bringing all the persons before the court by process. That was so done in this •case. So, we think there was no error of the court in overruling the demurrer to this petition. It stated a good cause •of action.

To the petition an answer is filed. It admits several matters, but, in substance, it is a general denial. The second ■defense denies the jurisdiction of the court, for the reason, • as set forth at great length, that the association, against whom the plaintiff was claiming relief, had provided for the determination of the very subject matter in controversy. That, by the rules of the order of which he was a member, and the State order, I may call it, an appeal was provided for; error was provided for; in other words, a tribunal was provided for tc hear and determine the very question; that had been done; and the provisions by which this tribunal is provided for are plead and set out in the answer. It al•so denied that he was a member in good standing. To the answer, the plaintiff files a reply; and, after making certain admissions, denies each and every other allegation, and •says the same are untrue. That is a general denial against mew matter, and would surely constitute a defense, not vulnerable to demurrer. The code provides, in section •5070, what the answer shall contain: 1. A general or specific denial of each material allegation of the petition ■controverted by the defendant,

“a. A statement of any new matter constituting a defense, counterclaim, or set-off, in ordinary and concise language.”

This the answer did. It set up new matter to avoid liability upon the cause of action set out in the petition.

Section 5079:

‘‘When the answer contains new matter, the plaintiff may Teply to such new matter, denying generally or specifically ■each allegation controverted by him; and he may also allege, in ordinary and concise language, any new matter not inconsistent with the petition, constituting an answer to such new matter in the answer.”

The defendant had alleged new matter, in strict compliance with the code; and the plaintiff replied. He goes further (and we think that this is only a general denial practically) and says: ‘‘That said defendants and said lodge refused to pay said benefits, and denies that this lodge or this order furnished him the tribunal provided for in the answer, and that there was an adjudication of his claim by any such tribunal.” That would be equivalent to a general denial. The issue would have been raised. So, ■in this respect there was no error.

Something has been said as to the character of this order. We are not clear but what this order could have been sued as a corporation, but, be that as it may, we think, under section 3232, and especially 3233, and 3234, the case in 6 C. C., 275, and 50 Ohio St., 276, that this is still a corporation, although its charter was a special charter and has expired'by limitation; for the reason that this association is still continuing to do business, j’ust as though there had been no expiration. The case in 6 C. C, 275, involves the Knox county Mutual Ins. Co., created by a special charter. If it were material we would hold that this lodge is still a corporation; it is exercising corporate powers, and it has brought itself under section 3234 of the Revised Statutes.

The next error that is assigned is the admission and exclusion of evidence. On page 7 is the first error, and, as these are questions of similar character, the disposition of one will dispose of all of them, in the view of the court. This is Lucas himself: “How has your general health been since the second stroke? Describe that to the jury.” An objection, and exception. By the rules, the plaintiff could only recover if he was not in good health,or not able to earn a livelihood. On page 5 of the little book “By-laws, Olive Branch Lodge No. 34, I. O. O. F.”: “Sec. 1. Each member of this lodge who,in good standing,shall be disabled by sickness or injury to his person from following his usual business avocations, provided said sickness or injury shall not have been occasioned by his own improper conduct, and shall have been a member thereof, by initiation, six months, or upon card for three months, and not in arrears for dues, shall be entitled to reeeive from the funds of the lodge, weekly benefits as follows:” * * * It was incumbent upon the plaintiff, as part of his case, to show that he had been a member six months; that he was a member of good health when initiated; and that he was disabled; otherwise, he would not be entitled to these benefits. Under this rule, it was not only proper, but it was incumbent upon him to show his condition of health, and he was a competent witness to testify upon that subject.

On page 29, the question comes up from the witness Taylor, who was an employe of Lucas, and he is asked: “State what was the coriditiiou of Mr. Lucas physically”.

True, Mr. Taylor was not an expert; he was not a physician; but we do not think that he would need to be. It is a mere opinion as to his condition;, he' wasn’t well1;' it was probably patent; it was physical.

On pages 31 and 32 is a statement of what a witness, Tom, who was not present in court, would testify to, under the same objection. We think it was proper.

At the conclusion of the case as made by the plaintiff, a motion was made to take this case from the jury. Without any discussion, much that was said by Judge Adams in the case of B. & O. R. R. Co. v. VanHorn is applicable here.

It does appear that Lucas was a member of this order. He had complied with the terms required of him; he was in good standing; he had been disabled by sickness; there was evidence tending to show that he was entitled to benefits; that he had made a demand arid had been refused; and it would have been error in the court at that point to have directed a verdict for the defendant.

On page 49, the defendant entered upon its defense, and the defendant, as a part of its defense, is offering the laws for the government of the Independent Order of Odd Fellows of the state of Ohio. That is this little book. It is practically all in the record. On page 73: “Counsel for defendants here proposed reading in evidence notes to decisions at the end of section 221, as contained in the above book referred to. ” An objection, by plaintiff; objection sustained, and exception. It was competent to offer the rule, but it would not be competent to offer what construction had been placed upon that rule by the order, because that was the very question in litigation. It was for the court then hearing the case to determine the rule, and not what construction had been placed upon it by the order itself. That same observation would apply to the exclusion of evidence on page 93.

On page 111 Mr. Lucas is asked if he had been notified of the charge that was made against him. He answered; “No”. The order had plead that there was a proceeding had in the order; that he had been duly notified in conformity'with the rules; he disputed that. From the testimony that was before the court and jury, it was competent for him to deny that he had ever been notified of the proceeding that was taken.

He was also interrogated, on page 113, as to what Jones said to him. Jones was a member of the committee. He is telling the questions that Jones asked him. We think that would be competent in view of what this record shows as to the way this committee performed its duties. They do not seem to have acted as a committee except, perhaps, in taking the testimony of one or two of these witnesses. Jones, it seems at his store, was asking him, and it probably was proper, being a member of this committee of the ledge; that rule providing against drunkenness, etc., and the claim being made by the order that Lucas was drunk, —Ihat he had been taken home drunk — it was proper to interrogate upon that subject.

On page 115, he is interrogated as to whether Major Nichols, who was also a member of this committee, asked him certain questions. On page 147:

“And when you got together, each one made their own report as to what they had heard ?” This is the witness Siegle. An objection is made there. “Each committeeman, as I already stated, has a certain part to perform, and which we did”. There is nothing improper in it, and it would only be right and fair that this plaintiff, if he had any status in court at all, should have the action of the committee, either how it conducted itself as a whole, or how the individual members of the committee conducted themselves in respect to the matter that they were investigating, and submitting to each other.

On page 159, Oarlile is asked something about the certificate of Dr. Larimore,and he is permitted t<? answer. There could be no prejudical error here. Not only was it not prejudicial to admit it, but it would have been error probably not to have admitted it, because the rules that are already offered in evidence provide, in certain cases, before the-member shall be entitled to sick benefits, he shall produce a certificate of a physician. He had done that. Upon what principle it would have been error to admit it, we do not. understand.

Those are the chief errors, outside of the exceptions to-the refusal of the court to charge as requested, and to the charge as given. The chief witnesses were the plaintiff' himself, Jones, Siegle, Garble and Fulton. The chief contention here was whether or not the paintiff pursued the-course provided for by the rules of the order for the receipt of benefits to which he was entitled. The order contended that the tribunal was open to him; that he did not pursue his remedy. On the other hand, it was contended by Lucas that an appeal was denied him. That was the issue in fact submitted. There was no material contention between the order and Lucas as to the amount he should be entitled to, if he was entitled to anything at all. Upon this, the burden was upon the order. It set up this new matter. What were the facts? Garble is the secretary. He says-that there was no notice of appeal given, but it does turn out that in this^record is a copy of a written notice of appeal, given by Lucas, found among the papers of this order. The original, for some reason, is not forthcoming. Lucas says that on the every night in question he gave-notice of appeal, in open lodge; he gave a written notice;that he then said he wanted a transcript; he made the demand; he seems to have pursued his demand; he employed' a lawyer; according to the rules, a transcript was necessary to take an appeal to the deputy grana master. Fulton was his attorney, a member of this order, demanded a transcript, and says that a transcript was received; that it was furnished to the grand master at Toledo, — Mr. Dow_,the proper officer to whom it should go. Dow says it was returned to Jones, who was his successor, as deputy grand master.. ■Carlile in his testimony says that the notice was given, but hie made no record of it. Mr. Fulton is very explicit in saying that he demanded a transcript. It was furnished, It was forwarded to the proper officer (Dow); a letter is here, ■ and there is some objection to that letter; and we just say, in passing, that it was competent, for this reason: he was the person to whom he should forward the communication, and he did it in the ordinary way. It was not expected of him ■that he should jump on the train and carry this in person; he resorted to the mail; he forwarded his communication to Dow; Dow says it was returned here. He had a right to inquire of Dow when he could not find where that transcript was; Dow was the predecessor; it had gone to him; Dow says he returned it to Jones. After it is here, Fulton ■sees Jones, and fixes a time when this appeal may be heard; ■ and it runs along until finally he says to him that there is nothing to be heard. That there is no appeal here; it has been disposed of by the committee or somebody else.

We think this record fairly shows that the jury was warranted in finding, upon this evidence, that the plaintiff had not been accorded that hearing which he was entitled to have under the rules of the order. And, as a matter of law, if it were necessary, the court could have ignored that entirely. The case in 56 Ohio St. probably goes to the extent of holding that these regulations in orders which preclude a member from going into the civil courts to assert a right, but must submit to the tribunal provided for by the •order of which he becomes a member, are void. But, that was not necessary in this case. The question here, which was purely one of fact, turned upon the question of whether •or not an appeal had been effected. The jury found (and we think fairly so from this record) that Lucas was denied an appeal. Counsel for Lucas concede as the law of the ■case that Lucas must pursue his remedy before the tribunal • provided for by the order itself; but says that that was not done, and that was the very question that the jury had to; pass on. We cannot see but what the jury were warranted» in finding as they did, if the instructions were proper.

S. L. James, and S. M. Hunter, for Plaintiffs in Error.

Edward Kibler, for Defendant in Error.

There were three requests asked to be given to the jury;; and, true, the court did not give them in so many words;-, probably one of them he did not give at all even in substance.. But, it does not follow that it is prejudicial error, because the court did cover in his chaige every material element involved in the case; and unless there was error in the charge given, even if some abstract proposition were requested to be given that was good law, if the charge as a whole cover— .ed it, it would not be prejudicial error, and the court would not reverse on that account; and in that respect we do not’, find any error.

There were a great many exceptions taken to the charge-as given; in fact, every paragraph, nearly, is excepted to,, but when you come to look at the charge, we think that the-court submitted to the jury fairly and under proper instructions the issues to be determined by them. Astheeasefinally arranged itself, it got to be a mere contention between this order and this plaintiff as to whether or not Lucas was accorded a hearing as provided for by the rules of the order, and, upon that proposition, the jury found in favor of Lucas. We think upon the whole that this judgment was right, and it must be affirmed,